House of Lords

Wednesday 7th July 2010 Lords Chamber

Wednesday, 7 July 2010.

15:00

Prayers—read by the Lord Bishop of Gloucester.

Introduction: Lord Willis of Knaresborough

Wednesday 7th July 2010 Lords Chamber

15:07

George Philip Willis, Esquire, having been created Baron Willis of Knaresborough, of Harrogate in the County of North Yorkshire, was introduced and took the oath, supported by Lord Wallace of Saltaire and Baroness Harris of Richmond, and signed an undertaking to abide by the Code of Conduct.

Lord Vincent of Coleshill took the oath.

General Election: Voting Deadline

Wednesday 7th July 2010 Lords Chamber

Question

15:13

Asked By

[Lord Trefgarne]

To ask Her Majesty’s Government what is their estimate of the number of citizens denied the opportunity to vote at the general election on 6 May because of the 10 pm deadline or other administrative difficulties; and what steps they propose to take to prevent those problems in future.

[Lord Trefgarne]

My Lords I beg leave to ask the Question standing in my name on the Order Paper. In doing so, I have to declare an interest: I preside over certain premises in Surrey which hosted one of the voting stations at the last general election.

[The Minister of State, Ministry of Justice (Lord McNally)]

My Lords, the Electoral Commission’s report of 20 May suggested that just over 1,200 people were affected by problems with queues at the close of poll on 6 May. We are considering the report carefully and will take any appropriate steps necessary to prevent this situation happening again.

[Lord Trefgarne]

I am grateful to the Deputy Leader for that reply. Were the problems to which he has referred about the same in Scotland and Wales as they were in England?

[Lord McNally]

I am not aware of problems in Scotland or Wales—perhaps I shall be informed of some within a very short time—but the Electoral Commission did not mince its words about the problems where they did occur. It said that they were down to inadequate planning processes and contingency arrangements. However, I point out that 27 polling stations out of 40,000 and 1,200 voters out of more than 29 million were affected.

[Lord Rogan]

My Lords, following the electoral abuses experienced in Fermanagh and South Tyrone in 2001, changes to electoral rules and methodology—such as reducing the number of voters per ballot box from 900 to 500—were introduced in Northern Ireland. All those changes were much stricter than in the rest of the kingdom. Will the Government take cognizance of the vast experience of electoral practices that we have in Northern Ireland and consider introducing in the rest of the kingdom these higher standards that we have for Northern Ireland constituencies?

[Lord McNally]

Yes, we should study very carefully the lessons that have been learnt in Northern Ireland in this area.

[Lord McAvoy]

My Lords, is the Minister not aware that thousands of votes were disqualified in the Scottish elections of 2007, due in large part to the confusion caused by holding two ballots on the same day? Will the Minister commit this Government to consult widely before going ahead with their plans to hold a referendum on the same day as the elections for the Scottish Parliament?

[Lord McNally]

I think that my right honourable friend the Deputy Prime Minister has already given the assurance that he will consult widely.

[Baroness Campbell of Surbiton]

My Lords—

[Lord Naseby]

My Lords—

[The Chancellor of the Duchy of Lancaster (Lord Strathclyde)]

My Lords, the noble Baroness, Lady Campbell of Surbiton, wishes to speak.

[Baroness Campbell of Surbiton]

My Lords, do the Government realise that there has been no progress on disability access to polling stations since 2005, according to the Scope research that has just been published? What steps will the Government take to make sure that disabled people can vote in the next election and vote for reform in 2011?

[Lord McNally]

My Lords, I have not seen the Scope research, but I will certainly study it. It is very important that all sections of our community, with any measure of disability, should be able to vote. One thing that I know is being considered is electronic voting, which might be an alternative for people with disabilities. But I take the noble Baroness’s point: disabled people, just like anyone else, want to exercise their vote personally at a polling station. We will look into that.

[Lord Naseby]

Is my noble friend aware that I asked a similar Question on 14 June? Since that date, it has transpired that bonuses have been paid to the returning officers for a number of those polling districts. Is that not an extraordinary situation and one that should be reversed?

[Lord McNally]

The matter of payment for returning officers in the last election is for the local authorities concerned. The Electoral Commission, in its report, called for it to be given greater control to make sure that returning officers do their jobs properly.

[Lord Hunt of Kings Heath]

My Lords, is there not evidence that some local authorities are skimping on the funding that they are making available for the conduct of elections? In particular, polling officers in the individual stations are not being given sufficient training. That is causing real problems in the way that they then deal with issues that arise on election day.

[Lord McNally]

We will learn lessons from this and there are some hard lessons to learn. For example, some local authorities looked at the three previous elections for which they had responsibility, which all had much lower turnouts. As the Electoral Commission said, that was not proper contingency planning. There is no doubt that the photographs and television pictures that went round the world were very bad public relations for British democracy. We will do all in our power to make sure that it never happens again.

[Lord Rennard]

My Lords, does my noble friend agree that the timing of polling days should be based on the convenience of the voters rather than that of returning officers, many of whom are paid large bonuses for their work in general elections? Is he aware of the most recent survey of public opinion on this issue, conducted by ICM earlier this year, which showed by a margin of almost 3:1 that voters would prefer to be able to cast their votes at the weekend rather than on a weekday? Will he therefore begin a proper consultation on shifting polling day from the traditional Thursday to the weekend, when many more people could vote more conveniently?

[Lord McNally]

It is very interesting. When I was first briefed on this, I was told that the consultation showed a very balanced response on the question of weekend voting. Then I probed a little further and found, as my noble friend surmises, that most of the people against polling at weekends were returning officers and most of those wanting voting at weekends were voters. As part of the review that I am talking about, I want us to look again at weekend voting.

[Lord Strabolgi]

Is the Minister aware that a number of authorities cut down on the officials working in the polling stations for reasons of economy, thus preventing many electors from voting because the queues got longer and longer and moved more and more slowly? Will the Government ensure that this sort of petty economy is not used to deprive people of their vote?

[Lord McNally]

My Lords, the expenditure on the general election in 2010 was £73.2 million compared with £47 million in 2005. Any local authority that claims that it was not funded enough to do its job is simply misleading the public. There was ample funding to do this job but in a very few places there was some very poor planning.

Rural Payments Agency

Wednesday 7th July 2010 Lords Chamber

Question

15:22

Asked By

[Lord Greaves]

To ask Her Majesty’s Government what action they are taking regarding the efficiency and effectiveness of the Rural Payments Agency.

[The Parliamentary Under-Secretary of State, Department for Environment, Food and Rural Affairs (Lord Henley)]

My Lords, I declare an interest as a recipient of payments from the Rural Payments Agency. An independent review of the Rural Payments Agency, commissioned by Defra, concluded recently. The Government will publish the recommendations of the review and our response to it shortly.

[Lord Greaves]

My Lords, is it not the case that in the five years since the single farm payment scheme was set up, the record of the Rural Payments Agency is one of a combination of bureaucratic incompetence and excessive cost? Would the Minister agree that farmers in this country are well disposed to this Government and are willing to give them the benefit of the doubt at the moment? However, unless this problem is sorted out, that attitude will change very quickly. Would he agree that the Government and the Rural Payments Agency have around six months, till the end off this year, to prove that the situation is being sorted out?

[Lord Henley]

My Lords, I accept that, as my noble friend says, there have been problems with the Rural Payments Agency. It has been the subject of an NAO report and summoned three times before the Public Accounts Committee as well as twice before the Efra Select Committee and once before the Public Administration Select Committee. We will try to address these problems and offer political leadership for that. I can give an assurance to my noble friend that the Minister of State of my department will, in future, chair the RPA board.

[Lord Renton of Mount Harry]

My Lords, I, too, declare an interest as a recipient of payments from the Rural Payments Agency. Does my noble friend agree that Defra literally passed the buck to the Rural Payments Agency when it was formed? Given that the variety of payments has now increased tremendously, does he think that the RPA will be able to cope, particularly when more EU money becomes available?

[Lord Henley]

My Lords, I would not want to go back into the history of the problems that have faced the agency. All I can say is that a report has been commissioned and we will look at the outcome of the report and see what changes can be made to improve the way in which it operates. I would not want to speculate on what those changes might be at this stage.

[Lord Brooke of Alverthorpe]

Will the Minister please confirm that nearly £1.9 million had been paid out by 30 June to 105,000 organisations or individuals? Will he say whether we will continue to increase the payments at the same pace as we have seen in the past two years or whether, as this is public money, there will be a review to see whether it should be frozen next year or the year beyond, as we are all in this together?

[Lord Henley]

My Lords, I can confirm approximately the figures that the noble Lord has given. Most payments were made by the end of June. I understand that by the end of that month fewer than 300 individuals remained without any sort of payment, and often those were for legal reasons such as probate or whatever.

[The Lord Bishop of Wakefield]

My Lords, is the Minister aware that pastoral care provided by local churches and indeed the Farming Help charities continues to be a necessary part of farmers’ relationships with the RPA? This is not typical of most other business relationships. At what point might the RPA system be simplified sufficiently to ensure more normal working relationships?

[Lord Henley]

Again, my Lords, I cannot say what changes will be made, but I can say to the right reverend Prelate that we are very grateful for all the work that the church has done to assist those who have suffered from late payments and who, as he made clear, have had considerable problems as a result. We hope to have the RPA working properly in the near future.

[Viscount Brookeborough]

My Lords, I also declare an interest as a farmer. What is to stop there being a simple first question on the IACS form saying, “Have there been any changes in the area of your farm this year, or are there any relevant changes? If the answer is no”—which it would be in 90 per cent of the cases—“please move to box 61 and sign”? Would that not be a great simplification which would dramatically cut the outrageous costs of this scheme?

[Lord Henley]

My Lords, the noble Viscount makes a very interesting suggestion. My understanding is that most of the form is already pre-printed with the information from the previous year on it, and it is then open to the individual merely to sign at the end. I understand that there were consultations in the past with various people in the industry about whether the noble Viscount’s suggestion would be possible, but there was no great interest in it at that stage. Again, though, we will look at that as part of the review.

[Lord Livsey of Talgarth]

My Lords, will my noble friend the Minister acknowledge that £90 million of taxpayers’ money has been paid in fines to the EU for incompetently processed payments? Does he agree that his department should look at one option at the end of the six-month inquiry: the abolition of the RPA?

[Lord Henley]

My Lords, I can confirm that we will look at all possible options.

[Baroness Quin]

My Lords, while I wish the Government well in taking forward the review’s recommendations in due course, given that rural payments are so important to both the economy and the environment of our rural areas, will the Government think again about their decision to abolish the Commission for Rural Communities in order to safeguard an independent rural voice in these and other important rural issues?

[Lord Henley]

My Lords, I think the noble Baroness will accept that that question is somewhat wide of that on the Order Paper, but no doubt I will address it in due course. Policy on this matter will still be retained by Defra, which will continue to look after rural interests and rural affairs.

UNESCO: Equatorial Guinea

Wednesday 7th July 2010 Lords Chamber

Question

15:28

Asked by

[Baroness Falkner of Margravine]

To ask Her Majesty’s Government whether they will make representations to the regional electoral group representing the United Kingdom’s interests on the United Nations Educational, Scientific and Cultural Organisation (UNESCO) executive board regarding the withdrawal of the UNESCO-Obiang Nguema Mbasogo International Prize for Research in the Life Sciences in the light of the human rights record of the Government of Equatorial Guinea.

[Baroness Verma]

My Lords, we have made representations at ambassadorial and ministerial level to the EU, Regional Electoral Group 1, the Commonwealth group and the director-general of UNESCO, calling for this prize to be withdrawn. We shall continue to press this point until a final decision is reached. We welcome the executive board’s decision on 15 June to work on a new set of rules for prizes and, in particular, to examine this prize more carefully.

[Baroness Falkner of Margravine]

I thank my noble friend for that reply. She will know that in the scientific and human rights communities, a UNESCO-Obiang Nguema Mbasogo prize for scientific achievement is roughly the equivalent of a Robert Mugabe-UN prize for democracy and freedom. How can we, the United Kingdom, UNESCO’s fourth largest donor, convince its executive board by its next meeting in October that it should try to salvage UNESCO’s credibility by not voting for this award?

Will the Minister assure the House that media reports suggesting that the US, France and other western countries are not taking this issue up with other UNESCO members for fear of upsetting the Africans are incorrect, and that we in the UK will do all that we have to to prevent this from happening?

[Baroness Verma]

My Lords, our ambassador to UNESCO has urged each group of which the Government are a member to adopt strong positions condemning this prize and seeking a solution. The Minister of State for International Development raised the subject of the prize with the UNESCO director-general in his meeting on 4 June and wrote to the director-general and the chairman of the executive board before the meeting on 15 June urging the executive board to withdraw the prize. Our delegation continues to push for strong statements against the prize and for firm and transparent rules for prizes that would prevent this problem from recurring in the future.

[Baroness Morris of Bolton]

My Lords, in assisting Equatorial Guinea and wider Africa to reach the minimum standards of human rights that the world rightly expects, what is DfID doing to help to build the essentials of a civil society there, especially access to clean drinking water and programmes to end violence towards women?

[Baroness Verma]

My Lords, my noble friend raises some important issues. A large proportion of DfID’s funding goes on programmes and initiatives to fight violence against women and on challenging it through civil society and women’s organisations. As my noble friend will realise, we support the MDGs; indeed, we are one of the countries that will meet the commitment on 0.7 per cent of GNI by 2013. Clean water is one of our major priorities in this respect.

[Lord Brett]

On the MDGs, there is an important conference in South Africa next week on Education for All. Who will represent the United Kingdom Government? Will that representative continue to support strong and free public education systems in poor countries, as opposed to the ill advised voucher schemes and private subsidies proposed in the Conservative Party’s recent Green Paper? I ask because Oxfam has condemned that approach as one that is unlikely to build success, while the director of UNESCO has called it “an absurdity” that would set back progress. He said:

“The idea that you can trot around slums and dish out vouchers is so far-fetched that it shouldn’t be taken seriously”.

Will the Minister comment on that?

[Baroness Verma]

My Lords, the noble Lord raises a number of issues. We are keen to ensure that the MDGs for education are reached. We are not ideological about the way in which education is delivered and we want to ensure that what works for individual countries is fully supported. British aid pays for 5 million children in developing countries to go to primary school every day. That is roughly the same as the number of children going to primary school in Great Britain, yet at only 2.5 per cent of the cost.

We have offered President Zuma of South Africa assistance if he requires it for the South African summit on 11 July, but so far we have had no representations. However, DfID has given the Education for All 1GOAL campaign £804,800 and will give another £195,000 this financial year.

[Lord Tomlinson]

My Lords, on the specific subject of the Question—Equatorial Guinea—where in the pecking order of issues for which we give assistance from our development funds do democracy, human rights and good governance figure? Are they near the top, near the bottom or somewhere in the middle of the list?

[Baroness Verma]

My Lords, on the specific point about Equatorial Guinea, I should say that we have no presence there, although the high commissioner to Nigeria, Bob Dewar, visits twice a year. However, we completely agree that there needs to be transparency in what Equatorial Guinea is doing on human rights. That is what we will urge through all the multilateral agencies through which we supply our funds.

[Baroness Garden of Frognal]

What consultation process has the UNESCO director-general set up to find a solution to this prize?

[Baroness Verma]

My Lords, my noble friend asks a serious question. We have asked UNESCO to ensure that all the principles and criteria in setting these prizes are open and transparent and that the board undertakes, with other agencies that are involved in setting these prizes, to look seriously at ensuring that prizes set in one sector comply with prizes set in others.

[Lord Foulkes of Cumnock]

Does the Minister recall that when Margaret Thatcher was Prime Minister, she followed the lead of Ronald Reagan and withdrew the United Kingdom from UNESCO, causing us great diplomatic difficulties around the world and upsetting the scientific and educational communities here in the United Kingdom? Can the Minister give us an absolute assurance on behalf of the coalition that any problems with this prize or any cuts in public expenditure will not be used as an excuse for again taking us out of membership of UNESCO?

[Baroness Verma]

My Lords, the decision at that time was right. The Government will look at our membership of and investment in all agencies to ensure that the greatest possible impact is being achieved with our aid. This is part of our multilateral aid review announced by the Secretary of State for International Development. The aid review will look at all agencies funded by the aid budget and will report back in the autumn.

Samantha Stobbart

Wednesday 7th July 2010 Lords Chamber

Question

15:36

Asked by

[Baroness Scotland of Asthal]

To ask Her Majesty’s Government what steps were taken by Northumbria Police when the recent warning from HM Prison Durham was received; and whether a multi-agency risk assessment conference was called to assess the risk faced by Samantha Stobbart.

[The Minister of State, Home Office (Baroness Neville-Jones)]

My Lords, Northumbria Police received information on Friday 2 July from Durham prison that Mr Moat had threatened to cause Ms Stobbart serious harm. The chief constable referred the handling of the information to the Independent Police Complaints Commission, which will conduct an independent investigation to determine whether Northumbria Police responded adequately. I also understand that Northumbria Police did not conduct a multi-agency risk assessment conference to assess the risk faced by Ms Stobbart.

[Baroness Scotland of Asthal]

My Lords, I thank the Minister for that Answer, but can I ask her why they did not? Bearing in mind that these events demonstrate clearly the need for a risk assessment in such circumstances, what steps will be put in place to make sure that multi-agency risk assessments are made? Can she give us an assurance that the Government will maintain the commitment made by the previous Government to hold the 80 remaining multi-agency risk assessment conferences, which are necessary to cover the whole of the country? They are the best way of saving lives and money.

[Baroness Neville-Jones]

My Lords, we certainly agree that the multi-agency risk assessment process is valuable. I have not heard anything from my colleagues that would suggest that we have any intention of doing away with them. There are clearly a number of actions that the police could have taken. One of the reasons why the chief constable referred the actions of her force to the IPCC was to discover what appropriate action could have been taken.

[Lord Stevens of Kirkwhelpington]

My Lords, I declare an interest as a former chief constable of Northumbria. Would the Minister not agree that this is a time for supporting Northumbria Police in a most dangerous and difficult situation? This is not a time for apportioning blame in any way, shape or form. Would she also not agree that this will be fully investigated by an independent authority? Let us support the police in their difficult task.

[Baroness Neville-Jones]

I am sure the whole House, including me, share the sentiments that have just been expressed.

[Lord Elystan-Morgan]

Was the threat that was made of such a nature that it could have been interpreted as a threat to kill? Does the noble Baroness appreciate that, under the Criminal Law Act 1977, the threat to kill is a very serious offence that is punishable by 10 years’ imprisonment? Was any thought given to arresting this man before he left prison and with a view to prosecution, thus avoiding the possibility of further offences?

[Baroness Neville-Jones]

My Lords, it is absolutely right to say that such a threat would be very serious. My understanding is that the police force was not informed that there was such a threat to life.

[Baroness Symons of Vernham Dean]

My Lords, will the Minister address the very specific Question put by my noble and learned friend Lady Scotland—why was a multi-agency risk assessment not held?

[Baroness Neville-Jones]

Let me give the House the timelines. The prisoner was released on 1 July, the information about this man’s statements was given to the force on 2 July and the chief constable learnt of that information only on 4 July. She referred the matter to the IPCC the following morning; clearly she felt there was a need to do so. I cannot go beyond that at the moment because this matter is under investigation, so I cannot help the House further.

[Lord Mackenzie of Framwellgate]

My Lords, does the noble Baroness think that there is now a powerful case for looking at the size and number of police forces?

[Baroness Neville-Jones]

My Lords, the Northumbria Police are receiving mutual aid. My right honourable friend the Home Secretary has been in touch with the force. If it needs any further assistance, it will certainly be given it. As for the noble Lord’s basic question of whether it is a good idea for forces to help each other, we as a party are in favour of forces joining together, or indeed merging if they wish, provided there is local support for such a move.

[Lord Harris of Haringey]

My Lords, while I am mindful of the points made by the noble Lord, Lord Stevens of Kirkwhelpington, given that there has been newspaper criticism of the efficiency of the Prison Service in issuing a warning and whatever response there may have been by Northumbria Police, what safety guarantees can the noble Baroness give on behalf of the coalition Government that in a few years’ time, with 25 per cent fewer prison officers and a 25 per cent reduction in police grant, which will no doubt impact disproportionately on specialist resources, this sort of event will not recur, or is the answer that Raoul Moat would not have been in prison at all because his sentence was only 18 weeks and, as far as the coalition is concerned, people like him should roam the country freely?

[Baroness Neville-Jones]

This individual was in for a short custodial sentence. Under the regime that prevails at the moment, half that sentence was served. As things stand, under legislation that was not passed by this Government, the governor has no discretion to do anything other than release the individual. He performed a duty in warning the police.

[Lord Elton]

My Lords, does the Minister understand the concern in this House about the release of potentially dangerous prisoners? Will she use this opportunity to revise, review, and preferably improve the method of screening prisoners before they are released in order to protect the public?

[Baroness Neville-Jones]

My Lords, my noble friend raises a very important issue. I understand that the IPCC will follow the investigation trail, so I think that we will get help in the form of its view about what happened immediately before the release. However, the issue that is raised is important and no doubt we will have to follow it.

Live Music Bill [HL]

Wednesday 7th July 2010 Lords Chamber

First Reading

15:44

The Bill was introduced by Lord Clement-Jones, read a first time and ordered to be printed.

Afghanistan

Wednesday 7th July 2010 Lords Chamber

Statement

15:44

[The Parliamentary Under-Secretary of State, Ministry of Defence (Lord Astor of Hever)]

My Lords, I am repeating a Statement on Afghanistan: Update on Current Operations.

“Mr Speaker, I am pleased to have this opportunity to update the House on our operations in Afghanistan. As the Prime Minister has said, we intend to make regular updates to the House.

As this is a complex subject, I have made maps available to assist honourable Members and will be happy to arrange further briefings at the Ministry of Defence, should Members find them useful.

The Prime Minister reminded us today of the ongoing sacrifices made by our Armed Forces in Afghanistan.

In the face of such losses, we should be in no doubt about the importance of the mission—particularly today, the fifth anniversary of the London bombings in 2005. It is vital to our national security that we have a stable Afghanistan which is able to maintain its own security and prevent al-Qaeda from returning.

As I made clear in Washington last week, we are a committed member of the international coalition of 46 countries in Afghanistan. We have a clear political strategy, and a clear military counterinsurgency plan to support it. The focus now is on delivering. And we can be confident that General Petraeus will build upon the considerable success of General McChrystal.

We face many challenges. Progress has been slower in some areas than others, particularly on the political side. We can expect success in counterinsurgency to be gradual, cumulative and hard-won. But there has, nevertheless, been considerable progress.

Through a UK lens, it would be easy to assume that all of Afghanistan is like Helmand. In fact, many parts of the country are largely secure, with low levels of violence. In Kabul, the Afghans themselves have assumed responsibility for security, and have proved themselves capable of dealing with the localised threats that have emerged. And we are making good progress on building up the Afghan security forces, so that this pattern can be repeated elsewhere. The Afghan army has been growing steadily over the years—by 20 per cent in recent months—to around 130,000 now.

We are playing our part, and the Government have recently approved the expenditure of up to £189 million on new surveillance, communications and logistics equipment for our bases, as part of our ongoing commitment to support the effective partnering of the Afghan security forces.

In southern Afghanistan, the story of this year has been one of the Afghans themselves increasingly coming to the fore in the fight against the insurgency.

In Kandahar, and under the direct oversight of President Karzai, Afghan security forces are leading operations as part of a rising tide of security in order to set the conditions for improved Afghan governance.

In Helmand, Afghan and ISAF forces have together succeeded in expanding the authority of the Afghan Government to 11 out of the 14 districts, by driving insurgent fighters out of the population centres of Babaji and Nad-e-Ali, while consolidating previous gains in Lashkar Gah, Now Zad, Nawa and Gereshk.

The situation in Marjah remains challenging, but counterinsurgencies are about progressively winning the confidence of the local people. The US Marines are well placed to succeed.

Elsewhere in central Helmand, where our presence is more established, we have seen considerable success. In Nad-e-Ali, British troops have been operating alongside the Afghans to secure the district centre and allow unfettered use of local roads. Improved security is allowing effective governance to flourish and trade to grow. In May, for example, around 3,000 Nad-e-Ali residents elected a more representative district community council.

ISAF now intends to reinforce this success. For that reason, I have accepted an ISAF request for a temporary deployment of elements of our Theatre Reserve Battalion, the 2nd Battalion the Duke of Lancaster’s Regiment. The TRB is a standing force based in Cyprus which I have instructed should only be used for time-limited deployments to fulfil specific tasks. This deployment will meet those criteria. The additional forces will be used to give commanders additional flexibility to reinforce progress in central Helmand this summer. In a counterinsurgency campaign, the people are the prize. It is hugely important that we strike the right balance between the numbers of the civilian population and the size of the security forces available to protect them. The Prime Minister and I regularly argued in opposition that British troops in Helmand were too thinly spread and that we had insufficient force densities for effective counterinsurgency. That is why we welcome the arrival of over 18,000 US Marines, whose presence is allowing us to deliver a better and more realistic distribution of tasks within the international coalition.

As the House is aware, ISAF has already transferred security responsibility for Musa Qaleh and Kajaki to US forces, who are building on our achievements there. Lieutenant-General Rodriguez, ISAF’s operational commander, will today announce the next phase of this process.

ISAF intends to restructure its forces in Farah and Nimroz provinces so that it can consolidate a US Marine brigade in northern Helmand, which will assume responsibility for security in Sangin later this year. This will simplify current command arrangements and enable UK troops to be redeployed to reinforce progress in the key districts of central Helmand. The Theatre Reserve Battalion will then withdraw. The result will be a coherent and equitable division of the main populated areas of Helmand between three brigade-sized forces, with the US in the north and south, and the UK-led Task Force Helmand, alongside our outstanding Danish and Estonian allies, in the central population belt.

We have been closely consulted by ISAF and fully support this plan. In Sangin, UK forces have made huge progress in the face of great adversity. The district centre has been transformed. Helmand as a whole is a safer place as a result of our endeavours and sacrifices there. I pay tribute to those who have lost their lives in Sangin and to those who continue to serve there.

The operations in Afghanistan, although geographically distant, are of vital importance to our national security. On the ground, we continue to make progress. There will be hard days ahead, but the further changes I have announced today mean more manpower and greater focus for the key terrain of central Helmand. We have the right strategy and we are determined to succeed. I commend this Statement to the House.”

My Lords, that concludes the Statement.

15:53

[Lord Tunnicliffe]

My Lords, I thank the Minister for repeating the Statement made earlier today by the Defence Secretary, and the Government for giving us early sight of it. I set out from the beginning that we largely agree with the moves announced today: my response will be a number of questions. It is important to recognise that the moves today are part of an ongoing process of deploying British troops as part of the coalition in the most effective way.

Our troops in Afghanistan do a fantastic job every day with resilience and courage in the face of hugely difficult circumstances. They put their lives on the line to protect our national security and we must never forget that. I welcome the commitment that the Defence Secretary has made to making regular updates in the other place, and I look forward to the Minister giving similar updates to your Lordships' House.

I hope that the Minister will take this opportunity to clarify whether there is a timetable for the drawdown of our troops in Afghanistan. It is crucial to the success of our efforts that the Government are clear on this issue. Will the decision on the withdrawal of our troops be conditions-based or will our Armed Forces be out of Afghanistan by the end of this Parliament, as the Prime Minister suggested? Specifically, if in five years’ time the situation on the ground is substantially similar to that of today, will British troops be withdrawn from combat?

The Defence Secretary has said that in opposition both he and the Prime Minister argued that our troops were too thinly spread. Will the Minister confirm that what he announced today is in fact a continuation of a process that we began in government? Does he accept that the uplift of American forces gave us the opportunity to improve force density and that, before that, we were limited in the adjustments that we could make? Will he also outline whether this change will bring us to the same density as our American allies? Can he also set out whether he envisages further changes to areas of operation in the near future? The Statement mentioned the deployment of elements of our Theatre Reserve Battalion to Afghanistan. Can the Minister reassure the House that this will not have an adverse effect on our capability to respond to any new contingencies that arise?

All of us on both sides of the House recognise that Sangin is one of the most challenging and difficult places in which our forces are operating. The number of losses that, sadly, we have suffered there reflect that. There will be mixed emotions from our forces and from those who have lost loved ones in Sangin on hearing the Government’s announcement today. Of course we recognise that. However, crucially we must also recognise that this is a decision made by ISAF commanders, whose responsibility is to ensure that coalition forces are organised so that they can deliver the campaign strategy that we all agree is necessary. We on these Benches will support them and the Government in the decisions that they take which enable our Armed Forces effectively to deliver that strategy.

We all recognise that for Afghanistan this is a vital year, in which we must see real progress. The Kabul conference and the September elections will be crucial for the future of the country. Will the Minister update us on progress in that regard and on discussions that the Secretary of State for Defence has had with the Afghan authorities on their prospects? Stability in Afghanistan cannot be delivered by our military alone. The problems are political and the solutions will be political. Will the Minister recognise that and update us on discussions that the Defence Secretary and other members of the Government have had with both the Afghan authorities and others in the region on the political progress that has been made so far?

As we have always said, the Government have our full support as they proceed to take difficult decisions in the best interests of our mission in Afghanistan and of our troops. Our work in Afghanistan is essential to keep us safe and we must never forget that.

15:58

[Lord Astor of Hever]

My Lords, I thank the noble Lord and am very grateful for the Official Opposition’s broad support for our specific and general proposals. I absolutely agree with what he said about our excellent Armed Forces.

As the noble Lord will know from his time in government, there are questions that I am unable to answer from the Dispatch Box. I know he agrees that we must do everything possible not to put the lives of our service men and women at risk. However, I am happy to offer private briefings both in this House and in the Ministry of Defence, where we will be able to share with noble Lords more information than I feel comfortable revealing at this Dispatch Box. I have already written to some noble Lords from all parts of the House who I know are interested in defence, and I will be writing to others. We have two dates in the diary for briefing—one before the Summer Recess and the other immediately after we return.

If I do not answer all the questions posed by the noble Lord, I undertake to write to him. He pressed me on deadlines. We want to see the Afghans take control of their own security. They cannot do that yet, but as they are better able to do so, we will see our troop numbers come right down and our role will completely change. The process of handing provinces and districts over to Afghan control will take place on the basis of an assessment of facts on the ground, but we are clear that we need to make progress rapidly, and the coming 12 months are crucial.

The Prime Minister is very clear that there will not be British troops in a combat role or in significant numbers in Afghanistan in five years’ time. Of course, some troops could be there in a training role as part of wider diplomatic relationships, such as we have in other countries, but it will be nothing like what we are doing now. The bottom line is clear: we do not want to be in Afghanistan a day longer than necessary.

That is an internationally agreed objective. The G8 in Canada in June sent a collective signal that we want Afghan security forces to assume increasing responsibility for security within five years. I accept that in the short time we have been in office we have followed through on some of the previous Government’s work in Afghanistan. The money announced by the Prime Minister for counter-IED work is new money, as is the £189 million announced in the Statement.

The noble Lord pressed me about end of force rebalancing. As the Statement says, the force rebalancing announced today follows the additional 18,000 US troops deploying to Helmand. As the Defence Secretary has said, we were not in a position before now to make the changes without those additional ISAF troops. Further changes to what our troops are doing in Afghanistan will undoubtedly be required over time. The transition will need to take place gradually and we have already seen this with the moves started at the end of last year which saw ISAF troops work more closely with their Afghan counterparts under the embedded partnering approach. That approach is seeing ISAF and Afghan troops working together at every level, from soldier and policeman on the ground to Ministers in Kabul.

The noble Lord also asked whether we have a clear counterinsurgency plan. Yes, the plan is clear; it involves protecting the civilian population from insurgents, supporting more effective government at every level and building up the Afghan national security forces to take over that task for themselves.

16:02

[Baroness D'Souza]

My Lords, I am grateful to the Minister for repeating the Statement, and I take this opportunity to pay tribute to our forces fighting in the south of Afghanistan. We are told that this is a crunch year and that significant progress has to be made in Helmand and Kandahar. It is, however, difficult to know what significant progress looks like and, therefore, whether it can be achieved.

I spent last weekend in Kabul talking with a wide range of people, including MPs, academics, teachers, university students, parents, schoolchildren, craftsmen and NGO representatives. Consistently and vociferously two views were expressed: first, the fear of the relentless advance of the Taliban from the south and now in central provinces, and seemingly moving rapidly towards Kabul and the north; and, secondly, the development in the 12 months since I was last there of an astonishingly strong anti-foreign feeling. The rationale, briefly put, is that billions of dollars worth of aid has not helped infrastructure which is deteriorating by the day. I am talking about roads, schools, health and public services of any kind, while unemployment, violence and the Taliban threat are increasing day by day.

What plans do the Government have to make a serious effort to insist that all multilateral, bilateral and NGO aid is co-ordinated, accounted for and directed towards genuine capacity-building involving Afghans? Does the Minister agree that if that were achieved there would be an alternative support structure for people, particularly in rural areas, who would in turn be more likely to reject the Taliban, which ultimately would be a more productive route?

[Lord Astor of Hever]

My Lords, I thank the noble Baroness for her question, and I of course share her admiration for the excellent work that our Armed Forces are doing. Why are we there? In two words: national security. Our forces are in Afghanistan to prevent Afghan territory from again being used by AQ as a base from which to plan attacks on the UK and our allies. Because Afghanistan is not yet capable of securing its territory without the presence of UK and international forces, al-Qaeda would return to Afghanistan, and the threat to this country would rise.

What are we trying to achieve? Afghanistan is not yet strong enough to look after its own security. The presence of NATO forces is preventing al-Qaeda and the Taliban regime from returning while we train Afghanistan's own security forces to take over that task themselves. The noble Baroness made the point that we need to do much more about redevelopment and leaving a legacy in the country. I absolutely agree. I can confirm that DfID, the FCO and the MoD are stepping up their efforts to discuss those issues together, along with our ISAF partners and the Afghans themselves.

[Lord King of Bridgwater]

My Lords, does my noble friend recognise that there is a great welcome for his offer of briefings on these matters? We face a critical situation, and if there is one duty that we owe to our Armed Forces and those engaged in Afghanistan, in the extremely challenging task that they are conducting so courageously, it is to ensure that Parliament and the people back them to the hilt. People must understand what is happening. No one in this House was under any illusion, even before the contribution of the noble Baroness, Lady D'Souza: we are at a critical moment. There is definitely a balance here. We must ensure that we move speedily on the counterinsurgency strategy, to make that as effective as we can, with the additional United States reinforcements and what my noble friend has announced today, and couple that with political progress. Time is not on our side, and we need to move fast.

[Lord Astor of Hever]

My Lords, on the latter issue, of course I agree with my noble friend. It is important that Members of this House, as well as of the other place, are properly briefed on difficult issues in Afghanistan, especially when our strategic defence and security review is taking place. I mentioned that, after the Statement, I will have a series of briefings in the Ministry of Defence. I have asked the Chief of the Defence Staff and the three other chiefs to come to give noble Lords the benefit of their wisdom. We will do that on a rolling basis. My door is always open to any noble Lord who wants to talk to me about Afghanistan or any other issue.

[Lord Craig of Radley]

My Lords, I welcome the Statement, and particularly the implication that there will be an increased counterinsurgency effort. The redeployments make sense in achieving that. I am, however, concerned about the additional redeployment from Cyprus. The Minister mentioned that that would be temporary. Bearing in mind the extreme stresses that there have been on the Armed Forces, can he indicate what “temporary” means and whether those ground forces are being supported by additional air and other assets, which will be essential to their role?

[Lord Astor of Hever]

My Lords, I thank the noble and gallant Lord for his question. I asked officials the same question, but I was told that I could not say more than “temporary”. I assure the noble and gallant Lord that it will be temporary. I add that there is still a company of our Armed Forces in Cyprus, so there will still be soldiers in reserve out there. They will be supported by a number of additional support troops, but I do not think they will be supported by aircraft.

[Lord Soley]

I am also in favour of briefings, and I welcome that offer. What plans do the Government have to combat the assumption that is already creeping into some aspects of the British media that British troops have had to leave the area because of casualties and so on? The barely hidden implication is that these casualties have been in vain because we have had to leave. This has happened before. We need a powerful media strategy to convey to the British media that when these military changes take place, there are good, rational reasons for them and they are not about being driven out, having to move out, giving in to the Americans or whatever. We need to get that message over. It may be one of the things the Minister ought to consider in his offer of briefings.

[Lord Astor of Hever]

My Lords, the noble Lord makes an important point. As the Secretary of State said in his speech in the other place, he is inviting the editors of all the national newspapers and other media to his office to give them a briefing in the hope that they will take a more positive line on the responsibilities we have out there. I look forward to seeing the noble Lord at some of the briefings that I am looking forward to having. I remember the happy times we had together in Afghanistan last year.

[Lord Lee of Trafford]

My Lords, in relation to building up Afghan capability, in a Written Answer, my noble friend indicated to me that something like 129 UK personnel were involved in training an embryonic Afghan air force. Is any of that training being done in the UK? Secondly, we know of the tragic loss of life among our service personnel in Sangin. Can he indicate how many have been severely wounded in that province?

[Lord Astor of Hever]

My Lords, I cannot give the noble Lord those figures, but I will get hold of them and write to him. The international community, including this country, is helping to develop the Afghan National Army, which includes the ANNAC, so that they are able to provide security for their own country. It includes the UK-led international combined airpower transition force, which is working to build a 3,300 member, 48-aircraft ANAAF as part of a long-term effort to give the country a self-sufficient air force. The UK’s contribution to NTNA is currently approximately 129 personnel, with one attached to the ANNAC as a rotary wing mentor. There is a small number of Afghans in this country on staff training courses, supported by English language training.

[Lord Myners]

Can the Minister give the House some comfort by pointing to a precedent where it has been sensible for a Government, when their soldiers are at war, to indicate their intention to withdraw at a pre-stated date and to examples of where that has been in the best interests of our fighting forces?

[Lord Astor of Hever]

My Lords, I point out to the noble Lord that we are part of an international ISAF organisation and we have done this with the agreement of our partners. I feel comfortable with that decision.

[Lord Kerr of Kinlochard]

Was the Minister responding to the last point made by the noble Lord, Lord King, when he spoke of the need to pursue a political track? He spoke of the need to win the counterinsurgency and to pursue political progress. In the light of what the noble Baroness, Lady D’Souza, told us, it seems very important to envisage serious contacts and negotiations with all parties inside Afghanistan and a framework that involves all the regional powers and Afghan’s neighbours, including the Chinese, the Russians, the Kyrgys, the Kazakhs, the Iranians and the Pakistanis.

[Lord Astor of Hever]

My Lords, the noble Lord makes an important point. We will not bring about a more secure Afghanistan by military means alone. Insurgencies usually end with political settlements, not military victories. As the Prime Minister said, as for talking to the Taliban, a process of reconciliation and reintegration is taking place where Taliban who are prepared to stop fighting and accept the basic tenet for the Afghan constitution can be reintegrated back into society. That should happen. That political track which runs alongside the training of the Afghan Army and the military surge is vital, as is talking to the neighbours surrounding Afghanistan.

[Lord Sterling of Plaistow]

My Lords, from a British perspective progress in Afghanistan is often measured through the lens of Helmand. Will the Minister give us a view as to whether he considers that this is a fair reflection of the security situation across the whole of the country?

[Lord Astor of Hever]

My Lords, it is easy to look at Afghanistan as just Helmand province, but large parts are at peace without any problems. We have to look at the country as a whole.

[Baroness Symons of Vernham Dean]

Let me bring the noble Lord back to the point made by my noble friend Lord Myners. I do not think that my noble friend was referring to the current arrangements, which we all understand are ISAF arrangements on which there has been a broad area of agreement in your Lordships’ House. My noble friend was asking what precedent there is for announcing a withdrawal by May 2015. It is that that is causing so much worry because it is thought to give people on the ground who are harming our troops—al-Qaeda, the Taliban and others—a target date by which they know we will be gone. It is that precedent that we would like the noble Lord to address.

[Lord Astor of Hever]

My Lords, there are always events. What the Prime Minister has said was an aspiration, to which we very much hope that as a country we can keep, although we could be overtaken by events.

[Lord Burnett]

My Lords, since 2001, and certainly over the past four years, despite shortages of manpower and helicopters, the courage, stamina and commitment of our troops and our allies are beginning to bring peace and stability to the people of Afghanistan. As Sir Richard Dannatt said this morning on the “Today” programme, for at least some years to come, we require a critical mass of fighting troops to sustain our contribution to the alliance. I hope that the Minister can assure the House that the strategic defence review will not lead to cuts in numbers of our essential fighting troops; namely, the 3rd Commando Brigade Royal Marines from the naval service and seven infantry brigades from the Army. The policy of restraint is undoubtedly correct. It is, however, easier to preach than to practise. It demands heroism, self-discipline and patience of the highest order. It also demands considerably more manpower.

[Lord Astor of Hever]

My Lords, the Secretary of State has made it clear that Afghanistan remains our top priority and that our people in theatre will get the best possible support. A counterinsurgency needs strategic patience and we are committed to seeing the mission through to resolution, thus creating a stable enough Afghanistan to allow the Afghan people to manage their own internal and external security.

My noble friend mentioned equipment. We are providing an additional £189 million from the Treasury reserve for equipment, together with up to £67 million for the counter-IED campaign announced by the Prime Minister. With regard to helicopters, as mentioned by my noble friend, we now have the upgraded Lynx helicopters, which have been fitted with increased fire power and more powerful engines to cope with the hot and high Afghan flying conditions. They join the Chinook, Merlin, Apache and Sea King helicopters out there.

[Lord Ramsbotham]

My Lords, the Statement contains the sentence:

“In a counter-insurgency campaign, the people are the prize”.

Quite rightly, my noble friend Lady D’Souza has drawn attention to the impact of what is happening now on the Afghan people. There was a well publicised operation to replace and repair equipment on the Kajaki dam. The electricity supply in Kandahar is said to be worse now than it was under the Taliban. What is being done to put these right because that sort of progress—making things better—must convince the people that what we are doing is helpful and right?

[Lord Astor of Hever]

My Lords, I am grateful to the noble Lord for that question. As I understand it, work on the dam, although it is of a high priority, is now considered a lower priority than other work. It will be taken on, but maybe not for another year or 18 months. However, it is very much in the sights.

[Lord Wright of Richmond]

My Lords, I apologise for speaking when I was not able to be here for the Statement, but is the noble Lord aware that there are two precedents which I think the noble Lord, Lord Myners, and the noble Baroness, Lady Symons, were seeking? One is Aden, which is a very unhappy precedent, and the other is the withdrawal of our forces from the Persian Gulf at the end of 1971. A precise date was given and it actually ended very happily.

[Lord Astor of Hever]

My Lords, I am grateful to the noble Lord for that history lesson and for being able to think on his feet more quickly than I was able.

[Lord Marlesford]

My Lords, we all want to see the Afghan Government take more control over their own decision-making and, crucially, to earn the respect and confidence of the Afghan security forces so that the Afghan Government can exercise effective leadership and command over their own forces. Will the forthcoming conference in Kabul be able to make a contribution to this?

[Lord Astor of Hever]

My Lords, the Afghan Government will set out the further steps they will take to build upon this momentum at the Kabul conference. They will present their priorities, which are to bring about improved security, economic development, better governance and development for Afghanistan. This will enable the international community to ensure co-ordinated assistance in common support of the Afghan Government and will be a further step in the ongoing process of robust and public monitoring of the progress made.

[The Earl of Shrewsbury]

My Lords, what efforts are being made to encourage the Pakistani armed forces to take greater responsibility for Taliban activity south of the border with Helmand?

[Lord Astor of Hever]

My Lords, Pakistan is fully engaged in a military campaign, although its efforts have been focused in the main on quelling the Pakistan Taliban. We are using key leader engagement at the most senior military level—the Chief of the Defence Staff, the Chief of the General Staff and CINCLAND—to develop relations with the military leaders of Pakistan with a view to increasing our influence and to establish a mutual understanding of the wider impact of security challenges in south Asia. At the request of the Government of Pakistan, this country is assisting in developing the capacity of the frontier corps in the north-west of the country via some targeted training under a US-led programme.

Academies Bill [HL]

Wednesday 7th July 2010 Lords Chamber

Report (2nd Day)

16:24

Clause 1 : Academy arrangements

Amendment 6

Moved by

[Baroness Walmsley]

6: Clause 1, page 1, line 21, at end insert—
“( ) to comply with the law on pupil exclusions and behaviour partnerships as set out in EA 2002, EIA 2006 and ASCLA 2009”

[Baroness Walmsley]

My Lords, I shall speak also to Amendments 48 and 50 in my name. Amendment 6 asks for academies to comply with the law as laid down in the Education Act 2002, the Education and Inspections Act 2006 and the Apprenticeships, Skills, Children and Learning Act 2009. I know that it sounds a bit silly to ask schools to comply with the law, but there is a reason for tabling this amendment. The current law on exclusions and behaviour partnerships is found in these three Acts. Some related legislation is to be found elsewhere: attendance and short-stay schools in the Education Act 1996, parenting orders in the Anti-social Behaviour Act 2003, et cetera.

Of late, academies have been included in legislation as it applies to maintained schools. My intention in tabling the amendments is to ask the Minister to make a clear statement about what does and does not apply to academies, and what will be included in the model funding agreement. I regret that I have not had time to scrutinise all of the 41 pages of the document sent to me yesterday just before our sitting.

Amendments 48 and 50 seek to include the new academies in the two areas of the law relating to exclusions and behaviour which do not currently include academies. Amendment 48 seeks to amend Section 52 of the Education Act 2002 and would include academies in the law on pupil exclusions. Section 52 enables a head teacher to exclude a pupil on disciplinary grounds for a fixed term or permanently. However, the majority of the section is taken up with providing for arrangements to appeal against exclusions.

The model funding agreement sent to us yesterday contains in annexe D a clear statement that parental appeals against exclusion from an academy are not to be treated in the same way as appeals against maintained school exclusions. This runs counter to my Amendment 48, which was tabled before I had seen the model funding agreement. For an academy, annexe D states:

“Any appeal panel will be impartial, constituted in accordance with the Secretary of State’s guidance and any decision of such a panel will be binding on the academy trust”.

The Secretary of State’s guidance has not yet been published so we do not know whether or not it is acceptable. The published guidance, School Discipline and Pupil-behaviour Policies: Guidance for Schools, dated April 2010, is clear: it states that it does not apply to academies.

There are issues of equality and human rights compliance here. Removing a place at a school is clearly a human rights issue as a person,

“shall not be denied education”.

If academy appeal rights are just about following guidance—or not, as the case may be—how does the state know whether an academy’s appeal arrangements are Human Rights Act-compliant? Who will check up on it?

The footnote states that parents can seek a judicial review of both the procedure and the outcome of any appeal arrangement. However, judicial review is not a parent-friendly form of redress. Most parents would run a mile from it, even if they understood what it meant; I probably would myself. At least a maintained school has access to the local government ombudsman on grounds of maladministration, although not necessarily on all aspects of the appeal, but the parents of a child at an academy will not have that. We need the issue clarified.

Amendment 50 seeks to add academies to the Education and Inspections Act 2006, and requires the governing bodies of academies to have a disciplinary policy and the head teacher to have a behaviour policy. All these matters arise from Sir Alan Steer’s review of behaviour and discipline and have been generally welcomed by schools.

On 28 June this year, in Hansard at col. 1573, the noble Baroness, Lady Morgan, referred to the provision in the ASCL Act 2009 when she was trying to make excuses for the high number of exclusions from the original academies under Labour. I do not agree with her that we need to accept that academies, by definition, will have a greater number of exclusions than other schools. I know many schools in difficult circumstances that have difficult pupils, but they see it as their duty to deal with these problems within the school. It is a matter of good leadership and marshalling all the resources to hand, including the voluntary sector on occasions.

However, the noble Baroness reminded us that all schools, including academies, will have to work in partnership on behaviour and attendance from 1 September this year unless the law is changed. There is a statutory requirement to this effect in Section 248 of the ASCL Act 2009 which is due to commence on that date. The section requires co-operation by all secondary schools, including academies, to promote good behaviour and discipline on the part of pupils, reduce persistent absence and report to the local children’s trust board once every 12-month period. We welcomed that move by the Labour Government when the legislation came through the House.

My amendments ask the Minister whether there is any intention to change the law to exclude academies from these measures and which of the current laws—in particular, the appeal arrangements in Section 52 of the Education Act 2002—will apply. I ask also about the rumour that legislation or guidance will be introduced to allow schools to exclude a child without the usual minimum of 24 hours’ notice to the parents. I am not sure where this came from, but it would be impossible for a working single parent to respond to this. In the interests of the safety of the child and the sanity of the single parent, for whom life is hard enough, I hope that my noble friend will be able to dispel this rumour. I beg to move.

16:30

[The Earl of Listowel]

My Lords, I have Amendments 10B and 44B in this group. They are intended to probe the Minister further on how he will monitor the impact of the academies legislation on the distribution of outstanding teachers. However, the Minister said yesterday that he would produce an annual report on the impact of academies. I hope that it may therefore be helpful to him and the House if I do not speak to my amendments and relieve the Minister of the task of replying, unless your Lordships would prefer me to speak.

I support Amendment 6. I spoke yesterday morning with the head teacher of a secondary school in north London who had increased the proportion of his pupils achieving five or more A* to C grades at GCSE from about 30 per cent to about 80 per cent. He said how much he would value a social worker and a child psychotherapist to support his staff. I was grateful to the Minister for having written to me during Committee about the value that he places on the role of Place2Be in supporting the mental health of children and teachers. It is important to encourage schools to reach out for these resources as far as possible. They are under pressure to achieve in league tables. The amendment is necessary to ensure that they get the support that they need.

[Lord Whitty]

I should point out by way of clarification, and to save the Minister a little time and effort, that Amendment 49 in my name is in this group. In reality, it should not have been in this group; it should have been grouped with Amendment 51. I shall not therefore take any time in speaking to it now and the Minister need take no time in replying. I do not promise to be so helpful in my later interventions.

[Lord Hunt of Kings Heath]

My Lords, I associate myself with the noble Baroness, Lady Walmsley, on Amendment 6. Academies are subject to the same statutory framework in respect of temporary and permanent exclusions as all other state-funded schools, which is welcome. We know that academies have had higher rates of exclusion than other state-funded schools and it is clear that there would be an impact on neighbouring schools if academies in general excluded more pupils but then did not take excluded pupils from elsewhere in the education area.

There are reasons for this in the current academy scheme, where often highly challenging schools were converted into academies and discipline was frequently a top priority. Where there is a large number of academies, it is important that they take their fair share of excluded pupils.

In government, we established a requirement on all schools, including academies, to participate in behaviour and attendance partnerships that involve other schools and have access to support from other children’s services. This was based on a clear understanding of the potential benefits of collaboration between schools and local authorities in the promotion of good pupil behaviour. I can see nothing in the Bill that links the new academies with a requirement to participate in behaviour partnerships. I hope that the Minister can assure us that academies will continue to do so.

I was very much involved in the establishment of NHS foundation trusts and there are clear parallels with academies. Foundation trusts were set up in the context of a statutory duty of partnership. There was a clear recognition of that in the National Health Service, whatever role different organisations played. NHS foundation trusts had a membership and a governing body, so those institutions were standing on their own two feet more than other parts of the National Health Service. Nevertheless, they were still part of the NHS. A duty was laid on them to work with others. It is a pity in some ways that we do not have a similar understanding that there should be a duty of partnership here. The noble Baroness, Lady Walmsley, raises those issues in her group of amendments and we look forward to a constructive reply from the Minister.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, in essence, this group of amendments would put on the face of the legislation requirements that are covered by academy funding agreements. As we know, since their inception, academies have been regulated by funding agreements. That was thought to be appropriate for many years, including by the previous Government and we agree with them. We intend to retain the funding agreement route as the principal regulatory mechanism for academies. I know that I deviated from this principle in relation to SEN, because we recognise that there are specific concerns around that about which I wanted to send a signal. But as a matter of principle, we are keen to stick to the well established idea that these safeguards should be delivered through the funding agreement.

On Amendment 6, I hope that I can provide my noble friend Lady Walmsley with some reassurance. Funding agreements require that academies act in accordance with the law on exclusions as if the academy were a maintained school. They have to have regard to the Secretary of State’s guidance on exclusions as set out in paragraph 1 of annexe D to the funding agreement. I have shared with noble Lords the new version of the exclusions annexe to the funding agreements, which continues to impose these legal requirements on academies. I am happy to put on the record that this annexe will be included in all future academy arrangements, both contractual funding agreements and grant arrangements.

[Lord Hunt of Kings Heath]

My Lords, the noble Lord said that he had shared that information with noble Lords. It would be helpful to clarify how it has been shared. Certainly yesterday we received a number of letters in the pigeonholes outside the Chamber, which meant that it was available in essence after the first day of Report had started. I hope that we can get those well in advance in future.

[Lord Hill of Oareford]

I believe that I apologised yesterday to the noble Lord for the lack of notice and do so again. I think I am right in saying that those letters were circulated at an earlier date, but if I am wrong I will put that right.

Regarding the placement of challenging pupils, including those who have been excluded, which I know is a matter of concern across the House, academies are required through their funding agreements to participate in in-year fair access protocols, which ensure that all schools in a local area take their fair share of hard-to-place pupils, including those who have previously been excluded. Academies are equal partners in those arrangements. The requirements envisaged by Amendment 48 in relation to the decision-making process surrounding an exclusion are already part of academy funding agreements and the departmental guidance is very clear about who can exclude a pupil, and in what circumstances the decision to exclude needs to be reviewed by the governing body.

Amendment 50 would require academies to follow the law and guidance on developing and implementing their behaviour policies. Academies are independent schools and are therefore covered by the Education (Independent School Standards) (England) Regulations 2003. These state that an academy must have in place, and must implement effectively, a policy on promoting good behaviour that outlines what sanctions will be taken in the event of any misbehaviour.

As for the specific questions raised by my noble friend Lady Walmsley, we accept that academies are obliged to follow the Human Rights Act and, if they were not following it, we would expect the YPLA as the academies’ monitoring body to identify that. As for exclusions, academies are treated in the same way; the main difference from maintained schools is that the academy trust, rather than the local authority, is the body responsible for setting up an appeal.

The noble Earl, Lord Listowel, did not speak to the amendments on teacher quality, and there was an amendment that was to have been spoken to by the noble Lord, Lord Whitty. I confirm for the noble Lord, Lord Hunt, the point that I made earlier, on which, fortunately, I was right. The annexes on exclusions were circulated on the second day of Committee, on 23 June; I should be happy to dig them out and circulate them again.

I hope that that provides some assurance on exclusions on the overall points. My noble friend Lady Walmsley made some specific points; if I have not responded to them, I shall follow them up with her separately outside the House or in writing. On a general point, which links to some of the discussion that we had yesterday, I hope that the suggestion that there should be an annual report to Parliament on the whole of academies policy will provide some further reassurance to noble Lords that these important issues relating to the development of policy will be kept firmly under review. I hope that that picks up on some of the points made by my noble friend Lady Walmsley. I ask her in light of that to withdraw her amendment.

[Baroness Walmsley]

My Lords, I am most grateful to my noble friend for his reply and to the noble Lord, Lord Hunt, for his support. I am very much reassured by his very clear statement that academies will have to comply with the law and with guidance as it is already laid down and that the annexe to which he referred will be included in the funding agreement. I got a copy of the annexe somewhat earlier than I got a copy of the whole funding agreement model, which I received only yesterday; that was why I was able to quote from it. I have not yet carefully scrutinised the rest of the funding agreement.

I am grateful to the Minister for stating again that academies will have to comply with the Human Rights Act. I am sure that not only the YPLA will be watching to make quite sure that they do so. If they follow the legal requirements introduced by the previous Government and the guidance that still stands, there should not be problems about exclusions. I am also comforted by the fact that we will have the opportunity every year to see whether the figures for exclusions in academies of both kinds—both the ones from failing schools and those from outstanding schools—have risen at all. If there are any discrepancies that we feel are inappropriate, we will have the opportunity in Parliament to have a look at that. I know that my noble friend was not prepared for my comment on the 24 hours’ notice, so I look forward to his letter about that issue. I am very much reassured by many aspects of his reply and I beg leave to withdraw the amendment.

Amendment 6 withdrawn.

Amendment 7 not moved.

Amendment 8

Moved by

[Baroness Royall of Blaisdon]

8: Clause 1, page 2, line 1, at end insert—
“( ) the school complies with the provisions of the Code for School Admissions issued from time to time by the Secretary of State under section 84 of the SSFA 1998 (code for school admissions));”

[Baroness Royall of Blaisdon]

My Lords, in moving Amendment 8, I shall speak also to Amendments 17B, 32A and 33A. I am grateful for the discussions that we have had with the noble Lord and the Bill team on these issues.

Amendment 8 relates to the admissions code. We believe firmly that the duty to comply with the code should be in the Bill. The Minister gave us his assurance in Committee that all new academies will have to comply with the admissions code, and I am grateful for that, but there is a question of confidence, clarity and the empowerment of parents. We have all had representations expressing concern about the admissions code for academies and there can be no better way to inspire confidence than by a clear statement in the Bill.

As we know, the code of practice seeks to establish terms within which fair admissions criteria operate, including those applied in cases in which schools are oversubscribed. This latter consideration is particularly important in relation to academies, where evidence suggests that they are more likely than other schools to be oversubscribed.

16:45

While the code of practice seeks to establish practices that ensure fairness in cases of oversubscription, examples exist of school-level approaches that undermine that aim. For example, residency criteria have been misused in order to skew intakes to particular schools, and it is apparent that a number of admissions authorities have failed to put transparent arrangements in place in this respect. Concern also exists that interviews or some other form of pre-admissions contact between schools, pupils and their families are still used in some cases to resolve oversubscription issues, notwithstanding their express prohibition by the code.

These practices can result in discriminatory outcomes for pupils and their families, compounded by the fact that the results of interviews can be difficult to justify objectively and transparently. Although parental interviews were outlawed by the previous Government, evidence has emerged of some schools using a series of meetings in the run-up to applications for admission that are designed to deter certain parents from applying through small group discussions with parents and senior members of staff. They are not interviews but they have the same effect.

I understand that all noble Lords would be against such practices, and that they would not be condoned by either the Government or the Opposition. It is important, however, that all concerned, especially parents, are aware of the applicability of the code. Its incorporation into the terms of the Academies Bill would assist with the establishment of greater clarity within the system, and it would inspire confidence by lessening the scope for ambiguity about the terms of the code or its applicability to academies. I therefore urge the Minister to accept this amendment.

Paragraph 122 of the admissions code relates to expansion and grammar schools and brings me to my other amendments in this group. My reading of the code is that if a grammar school wished to expand, there would have to be consultation. We deal with this issue in Amendment 32A. If there are to be selective academies, we believe that it is important that they should not be able to expand without consultation; to do so could lead to an imbalance in the provision of educational opportunities in a community. I know that the Minister has written to my noble friend Lady Morgan of Drefelin on this issue, and I would be grateful if he would confirm for the record that the Government will allow selective academies to expand where a strong business case has been made and where there has been local consultation.

On Amendments 17B and 33A, the House will be well aware that the previous Government introduced academies for the primary purpose of lifting standards in disadvantaged schools in disadvantaged areas, and we are proud of that achievement. While the extension of academy status to schools of excellence is one step, we believe that the extension of schools that are selective is a step too far. We are against selection in principle, and to allow grammar schools to become academies would represent a significant and concerning departure from the programme of the previous Government, where academies were prevented from admitting pupils on the basis of ability.

[Baroness Walmsley]

My Lords, I have Amendments 32 and 32B in this very mixed group of amendments about selection, religion and admissions. The Minister has been very clear about the duty of academies to comply with the admissions code so, as with the previous group of amendments, I accept that it does not need to be in the Bill. I presume that it will be in the funding agreement.

Amendment 32 was laid after our discussion in Committee about selection. While I accept in general my noble friend’s assurance that,

“The Bill does not allow for any increase in selection by ability in the state-funded sector”—[Official Report, 28/6/10; col. 1563],

it occurred to me that if a selective school became an academy and then expanded the number on its roll, that would mean more actual children in the area being selected by ability. So I laid this amendment to say that such expansion should not increase the number of children in the relevant area who are selected by ability. However, I accept that this duty would be difficult for an individual school to achieve, especially when I went back and read what the Minister reminded us about the ability of selective maintained schools that are not academies to expand by 25 per cent within the normal admissions consultation. In the light of that, I think that what I am asking for in my amendment would be pretty well impossible. Therefore, I am using the amendment to ask my noble friend who would have the responsibility of watching out for a large expansion of selection by ability among schools both inside and outside the control of a local authority when a lot of new academies are created, given that some of them will be former selective schools that are opting out.

Amendment 32B was originally laid in Committee as Amendment 135. I do not believe that the Minister addressed the matter in his reply, but I forgive him because, as he does today, he had several topics to deal with in the grouping. I believe that these ridiculous groupings have arisen because of the minimal time that we have had between Committee and Report; noble Lords have not had enough time to scrutinise the draft groupings and to make some sense out of them. Amendment 32B would require the governing body of a school with a religious character, if it converts to an academy, to use the fresh start as an opportunity to look at its religious character and to decide whether it wishes to change it. Since the school was first set up, there may have been a big change in the demographics and cultural mix of the catchment area. That may lead a governing body to consider whether it wishes to join together with another faith, or more than one, or to make a larger percentage of its intake inclusive of people of other faiths or none. It would not prevent those governors from making no change at all, but it would give them an opportunity specifically to consider their duty to promote community cohesion and to make a change. It would not interfere with their discretion to make their own decision in any way; it is not prescriptive at all. I commend it to the Minister.

[Lord Lucas]

My Lords, in this group I have Amendment 10A, which follows on from the discussion in Committee about the effects of Clause 1(6)(d). My noble friend Lord Hill said that paragraph (d) would not prevent an academy from reaching out to areas that were not in its immediate vicinity in order to broaden its intake. It would not prevent a grammar school that became an academy from maintaining its current and typically wide catchment area. Also, to take it even further, it would not prevent an academy from being or becoming a boarding school. I asked my noble friend what, under those circumstances, the paragraph would prevent that the Government wish to prevent. He has not replied, so I presume that there is nothing and that therefore the paragraph has no function. That is my reason for returning to the matter on Report.

On the amendment tabled by the noble Baroness, Lady Royall, the crucial bit of the model academy funding agreement appears to me to be clause 12(c). Reading that, I do not see what in the agreement—although, like my noble friend Lady Walmsley, I have not parsed it as carefully as I might—updates the requirement as the general admissions requirements change. It seems to me that an academy that was created tomorrow would be for ever stuck with today’s admissions arrangements, even if we improved them in a year’s time. I do not see what in the model funding agreement rolls the requirements forward. That would also apply to SEN requirements and other matters that are dealt with in clause 12. I would be grateful if my noble friend could give me some comfort about what keeps academies current.

[The Lord Bishop of Lincoln]

My Lords, I imagine that your Lordships would expect me to intervene to speak in particular about the clause on religious character, but I have a couple of other comments to make on this group of amendments. By virtue of the scars that I bear from the age of 11, I am not particularly a fan of selective education. My primary school appealed against my having passed the 11-plus, which these days would probably be actionable under human rights legislation. I am Bishop of a diocese where the county still operates a selective system, but I am still not a great fan of it. My instinct is to support any amendment that is likely to result in the Academies Bill not giving selective education a fairer wind than it already has in some parts of the country.

I do not particularly want to go there. However, I will speak to the amendment tabled by the noble Lord, Lord Lucas. I take his point and I tabled an amendment to that subsection in Committee. You might think that we would be all in favour of any proposals that freed up the potential for church schools to recruit their faith members from as wide a field as possible. However, I can only reiterate what I have said at various stages of the Bill: we are in the business of providing schools not to accommodate those who are paid-up members of the Church of England but, rather, to be instrumental in providing first-class education in some of the most deprived areas of the country. We can say only that if there are no limits on the ability of a school to admit pupils geographically, our ability to deliver on our title deeds in education—which are now nearly 200 years old—would be seriously attenuated. So I am very anxious that there should remain in the Bill a clear understanding that there should not be any attempt to liberate the admissions policy to accommodate just any pupils from anywhere.

More important is Amendment 32B in the name of the noble Baroness, Lady Walmsley. My comments on this are threefold. First, some of us have been urging on the Government, in respect of several clauses in the Bill, that the avoidance of doubt might be a good idea, and so to include something even if it is implicit elsewhere. Let us make it explicit in the Bill. I have a great deal of sympathy for any amendment which seems to be about the avoidance of doubt. Let us give the governing body the chance to make a clear statement as to whether it wishes to continue as a school of religious character. Secondly, however, this could become very difficult. In Clause 3(2), (3) and (4) on foundation schools, there is a requirement to consult the foundation before an application for academy status is made. I am getting rather confused about this. If we pass this amendment, at which stage does the governing body say that it does not want to be a school of religious character any more? If it then consults the foundation, which is by definition committed to the religious character of the school, I can see only confusion here.

My most important point is the third one. I have tried, as have other noble Lords, to avoid using the Bill as a vehicle either to expand or dilute the particular existing character of a school. There may well be a case for doing either or both of those things, but this is not the way to do it. The Bill is about something quite different in terms of the overall structural arrangements made for our schools in the future. I therefore urge the Minister to resist Amendment 32B, if for no other reason than that he would thereby be resisting a Trojan horse approach to the Bill. Although a Trojan horse proved successful on one occasion, as those who know their ancient history will realise, nobody came out of it with much credit.

[The Earl of Listowel]

My Lords, Amendment 10C follows an amendment to the Bill that I tabled in Committee. It would put admissions to academies on the same basis as those to maintained schools. I am bringing this back at this stage because I was grateful to the Minister for his helpful letter on this point, and I wanted to give him the opportunity to put on record what he said in that letter. I am very grateful for the pains he has taken to clarify this point. I am also grateful for the special measures that he has taken with regard to SEN. However, listening to the opening statement of the noble Baroness, Lady Royall, on this group of amendments, I remain concerned. I declare my interest as a trustee of the fostering and adoption voluntary agency, TACT, which works in England, Scotland and Wales.

It was a great step forward when the previous Administration some years ago made the admission of children in care to schools an absolute priority. I was troubled to hear the noble Baroness talk about admissions interviews. I am reminded of a concern that many foster parents will not feel particularly pushy for their children; they have other concerns. If it were possible for the Minister to say that he will at least consider including in the annual report an assessment of any impact on the admissions of looked-after children to academy schools, that would be comforting. I look forward to his response.

17:00

[Lord Knight of Weymouth]

My Lords, I support my noble friend Lady Royall. I state my very clear position that I am not in favour of any expansion of selection by the front or the back door—the back door route enables the expansion of admissions by existing selective schools that may become academies. I was therefore fairly disappointed in myself when I saw the Minister’s letter to my noble friend Lady Morgan of Drefelin, in which he says that the previous Government allowed selective maintained schools to expand by up to 25 per cent without publishing statutory proposals. Given that my fingerprints are all over the admissions code and the primary legislation that brought that into place—the Education and Inspections Act 2006—I was surprised that I might have let that one through. However, I pay tribute to the Minister’s officials for finding him that get-out. They continue to do a fabulous job for their Minister.

However, I have one or two questions to ask him. I have looked at the latest version of the 2010 admissions code. Paragraph 1.15 makes it clear that:

“Admissions arrangements for Academies are … part of an Academy’s Funding Agreement”.

The model agreement, to which we have referred, makes very little mention of admissions. Paragraph 12 makes some mention but the main section is paragraph 17, which says that the academy will be an all-ability, inclusive school. Clearly, we need a variant of this model agreement to show how it would apply to selective schools that then become academies. I would be most grateful if the Minister could assure us that that is being drafted and that we can have sight of it as legislation goes through Parliament. If we cannot see it in this House, perhaps the other place can see it before it debates it.

My second question concerns the admission number for schools. Paragraph 1.16 of the code refers to the importance of the admission number. Paragraph 1.17 says:

“Admission authorities of maintained schools must set admission numbers with regard to the capacity assessment for the school”.

That is set according to the physical constraints of the school. Will academies be bound by the same capacity assessment? That is particularly relevant when we get to the section of the admissions code to which the Minister referred in his letter that I mentioned earlier. In paragraph 1.20, the,

“statutory proposals are still required for schools proposing an enlargement to their premises which would increase the physical capacity of the school by more than 30 pupils and either by 25 per cent or by 200 pupils”.

My next question concerns the presumption of approval. Paragraph 1.22 of the code states:

“Local authorities and the Schools Adjudicator, when making decisions over setting admission numbers or admitting above them, should have regard to the presumption that proposals to expand successful and popular schools, except grammar schools, should be approved”.

Does that clause “except grammar schools” read the way that I intended when I approved it: that for grammar schools, the presumption would be that you would not approve the expansion? This area needs clarity. These amendments add clarity by saying that we should not have any new selection by any means. I know that is what the Minister’s right honourable friend Michael Gove said before he became Secretary of State. I have not paid sufficient attention to know whether he has repeated it since he took up that office.

Finally, I should be grateful if the Minister could say whether he has thought about using the schools adjudicator, as a truly independent person, to resolve these things after proper consultation, because the volume of new academies may swamp the Secretary of State when making the judgments that are required of him, as the law currently stands.

[Lord Blackwell]

My Lords, briefly, I ask the Minister to consider Amendment 10A in the name of my noble friend Lord Lucas. The whole purpose of academies is to enable good schools to become even better schools. The benefit of good schools in an area is that they ought to be able to provide such opportunities for as many children as possible.

One of the problems of the current admission system is that it ends up, in practice, turning into selection by house price. In other words, the good schools that become better schools tend to be in areas where parents move in and house prices rise. In that situation, poor schools and their pupils who live in neighbouring areas do not have the choice of getting the benefit of being able to apply to the better school next door. Indeed, schools in poorer and often disadvantaged areas have no incentive to improve. They do not have any competition, because they have in effect a monopoly of access in the local catchment area. There is a wholly beneficial argument for saying that if we allow good schools to develop by becoming academies, it would be socially desirable to allow all children from within a feasible area around that school who chose to apply to gain the benefit of being able to go to that school, rather than only the children of parents who happened to be able to afford to live nearby. It is wholly in favour of social mobility to widen admission as far as possible.

I would go further, as I argued at Second Reading. Contrary to the noble Lord, Lord Knight, I believe that there should be a place for selective education in the state system. That, too, would help social mobility. I accept that that is not the spirit of the Bill or the policy of the Government, and unfortunately there is nothing in the Bill that would allow that to happen. Therefore, I certainly would not support the amendments that try to go further in restricting admissions freedom, although Amendment 10A merits consideration.

[Lord Hill of Oareford]

My Lords, these selection issues are important, and I know how important it is that I provide as much reassurance as I can. I know that when I met the noble Lord, Lord Hunt, and Members on the opposition Front Bench, he was very clear, and I obviously understood, that selection is a touchstone issue that is extremely important to the party opposite. I hope that he will also accept by the same token that that is extremely important to Peers in the coalition Government. As the noble Lord, Lord Knight, said, my right honourable friend the Secretary of State has made it very clear that he is not interested in fighting old battles and reopening the question of selection, which I know will disappoint my noble friend Lord Blackwell. I hope, therefore, that I can provide some of the reassurance that noble Lords opposite and on these Benches have been asking for.

In part, one of the issues underlying all this, and which we touched on in the first group of amendments, relates to the reassurances provided through the funding agreement. That remains the case. Amendments 8 and 10C would require academy arrangements to include terms that provided that academies be treated as maintained schools for the purposes of their admissions policy under the schools admissions code. As I previously confirmed and my noble friend Lady Walmsley made clear, academies must comply—as is the case with maintained schools—with admissions law and the codes, and that is achieved through the funding agreement. I confirm that all future academy arrangements will contain this requirement. This is not, as some may fear, a voluntary requirement but a contract that is enforceable by the Secretary of State. The approach is consistent with that taken by the previous Government, who never sought to require in legislation academies' compliance with the admissions code. We do not see any reason to change that.

I will respond to one question from the noble Lord, Lord Knight. There may be other points on which I will have to speak to those excellent officials to whom he referred, and write to him. The detailed admission arrangements are in the annexe to the funding agreement that was shared with noble Lords earlier, perhaps before the noble Lord joined the House—I am not referring to the one that we shared yesterday. The model funding agreement published yesterday makes it clear that academies will continue to be bound by the same arrangements.

Amendment 10A, tabled by my noble friend Lord Lucas, seeks to remove the requirement that an academy should provide the majority of places for pupils who are wholly or mainly drawn from the area in which it is situated. We discussed this in response to amendments moved by the noble Lord, Lord Adonis, who was particularly concerned about boarding schools and those with a particular specialism. The words “wholly or mainly” require that more than 50 per cent of the pupils of an academy are drawn from the area in which the school is situated. My noble friend Lord Lucas asked why one should not simply do away with this. We believe that the requirement that an academy is a local school is important, as we want to ensure that local children have access to good quality schools. I think that point is welcomed by Peers on all sides of the House.

The phrase,

“the area in which the school is situated”,

like many such phrases, must be set in context. In practice, it depends on the nature of the school. If the academy is a boarding academy, or an academy with a particular specialism, the area could be very much wider than that which would be applicable in the case of an academy without special features. That is how it has worked in practice. We discussed this in Committee in the context of boarding schools and schools with a particular specialism. Following that debate, I pursued the point with officials, because I wanted to make sure that that was the understanding. The definition has not proved to be a problem in practice. I am very happy to write further to my noble friend Lord Lucas to follow up on his specific points.

Amendment 17B seeks to include provisions in academy arrangements to ensure compliance with academy characteristics, while Amendment 33A seeks to achieve similar aims by allowing selective schools to continue to select by ability. As I said in Committee, the Bill requires that the academy arrangements will oblige the academy proprietor to comply with the Clause 1(6) characteristics when establishing and running an academy. The Secretary of State ensures at the outset of an academy project that the academy meets those characteristics. Thereafter, compliance with them, and with all aspects of the funding agreement, is monitored by the Young People's Learning Agency. If anyone has concerns that an academy is not complying with the required statutory characteristics or the term of its arrangements, this can be brought to the attention of the YPLA or the Secretary of State, who will look into it and take appropriate action.

Amendment 32A, in the name of the noble Baroness, Lady Royall, seeks to prescribe in legislation a requirement that would prevent a selective school from increasing admission numbers once it becomes an academy. The Bill contains provisions that allow selective maintained schools to retain academic selection if they become academies; but, as we have discussed and as I am happy again to put on the record, it does not allow for new selection.

One point that perhaps has not been made before is that any independent school seeking to become an academy, which people may worry is a possible back-door route, would have to cease to be selective. As the noble Lord, Lord Knight, pointed out, under current legislation, the Education and Inspections Act 2006, any maintained school, including a selective school, may increase its admission number as part of any changes to its admission arrangements, subject to consultation. We propose no change to this in the Bill; in fact, we seek to maintain the status quo. The amendment would reduce the right to expand for one set of schools. It seems wrong to bar one set of successful schools from responding to demand for more places when that opportunity is currently open to them in the maintained sector.

Finally, I turn to the issue of faith schools raised by Amendment 32B, and I shall speak in support of the right reverend Prelate the Bishop of Lincoln. We had a keen debate about faith schools in Committee. As is rather the case with selection generally, the aims of the Bill in relation to faith schools are very modest, and the right reverend Prelate made the point well and fairly. We are simply asking to maintain the status quo, which I think is the point that he made. Nothing in the Bill will make an increase in faith schools easier, nor is there anything that seeks to change their character, but we believe that a faith school should have the same chance to become an academy as any other maintained school. We are not convinced that it would be right for faith schools seeking to convert to academy status to have to go through an additional application process simply to stay as they are. We think that designated faith schools are a key element of a diverse school system, and that they provide parents with an important choice.

We know from experience that academy arrangements involve a sufficiently robust safeguard. Earlier, we heard about a Trojan horse. In reply to the right reverend Prelate, it did not work out very well for the Trojans, or indeed for most of the Greeks. There is no back door to selection in the Bill. Having gone into this matter carefully and listened to the points made from the Benches opposite as well as from this side of the House, I believe that that back door is locked, bolted and padlocked. I hope that that reassures the noble Lords who have spoken and, in the light of that, I ask the noble Baroness to withdraw her amendment.

17:15

[Lord Lucas]

Before my noble friend sits down, can he give me some comfort on clause 12(c) of the model funding agreement? What is it about clause 12(c) or other aspects of the funding agreement which mean that, when the admissions requirements for maintained schools are updated, they are updated also for academies? The default position in contract law would be that they were not updated.

[Lord Hill of Oareford]

If I may, I shall need to write to my noble friend to make that specific point clear, and I shall circulate it to the House.

[The Earl of Listowel]

Before the Minister sits down, I should say that I am very grateful to him for the pains that he is taking in this area. Will he consider whether the annual report should actively look at this area and keep it under review?

[Lord Hill of Oareford]

I hope that the noble Earl will forgive me. He made that point very clearly earlier and I am sorry not to have responded to it. This report is rapidly assuming biblical proportions. There seem to be a whole range of issues arising from this debate that noble Lords from around the House will want to make sure are looked into very carefully and debated properly. I am sure that the point that the noble Earl has made is just one such example.

[Baroness Royall of Blaisdon]

My Lords, I am grateful to the Minister for his very full response. I certainly accept that there is nothing in current legislation stipulating that academies must abide by the admissions code. I accept that the safeguards are adequate for 200-plus academies but when it comes to 2,000-plus, which there may well be if free schools become academies, then perhaps greater safeguards are needed.

I tend to agree with the right reverend Prelate the Bishop of Lincoln that sometimes it is necessary for things which are implicit to be made explicit, as that inspires confidence. I certainly urge the Minister to take the opportunity to make explicit the fact that academies have to abide by the admissions code by putting that into the Bill. However, I accept the arguments that he made and beg leave to withdraw the amendment.

Amendment 8 withdrawn.

Amendment 9

Moved by

[Baroness Massey of Darwen]

9: Clause 1, page 2, line 3, at end insert “except that Personal, Social and Health Education shall be a curriculum requirement”

[Baroness Massey of Darwen]

My Lords, the amendment, which is in my name and that of the noble Baronesses, Lady Gould and Lady Flather, would make personal, social and health education a curriculum requirement. I thank the Minister for his courtesy in meeting a group of us to discuss our concerns, and for his consideration of the amendment.

We debated this issue at length in Committee and it was said then that this is not a party-political issue. It is about the welfare of children. It is not about sex education—perhaps it is partly, but it is mostly about personal, social and health education. I have three points to make. The first relates to why I think every child should be entitled to PSHE in school. The second refers to the readiness of schools to take on PSHE and the third relates to the impact of PSHE on the lives of young people.

PSHE tackles issues which are important to young people and to parents. I refer to issues such as drugs, alcohol, staying safe, diet, sex and relationships, and so on. The methods used to teach PSHE also encourage young people to explore their feelings and attitudes and to reach informed decisions. Such methods may include role play, small discussion groups, and learning from visitors such as the police or nurses. Another aspect of teaching PSHE is that young people can also learn where to get help for themselves, a friend or relative—for example, in relation to drugs, alcohol or sexual health. One of the results of teaching in this way is that young people learn how to respect others and develop self-esteem by having their opinions valued in a group. If we can develop in young people communication skills and respect for self and others, it can be life-enhancing in the midst of negative and damaging influences from the media and other sources. It can counteract pressure from the peer group so that young people become strong enough to resist dangerous experimentation. Strong and confident young people make better parents and better members of society.

I am a parent and a grandparent, and I was a teacher. I know, as do noble Lords, that young people take risks of all kinds. We have all done that, but I suggest that risks these days are more sinister than when we were young. We also know that early intervention can prevent distress attached to health and social problems. PSHE also makes economic sense. If young people can be helped to make healthy choices we may see less alcoholism, less unsafe sex and less obesity.

Parents and young people themselves want PSHE delivered in schools. Even good, competent parents often find personal issues difficult to handle with their children, and children—particularly adolescents—may wish to have some distance from their parents in discussing, for example, their relationships. Parents want their children to receive accurate information rather than that gleaned from friends, the media or pornography. One young person said, “PSHE is important because it provides us with opportunities to discuss complex issues in a safe environment. We develop skills to deal with difficult situations and are better equipped to make the right choices”. That says it all.

My second point on the question of how ready schools are to teach PSHE came up in our earlier discussions. Of course, many schools are teaching it already as they see the value. Teachers are being trained. More than 6,000 are known by the PSHE Association for teachers. When it was announced at a teaching conference last year that the then Government had agreed to have PSHE as a statutory subject in the curriculum, a long and loud cheer went up. Jim Knight—now the noble Lord, Lord Knight—said that it was the only time he had been given a standing ovation. One student teacher said: “Being given opportunities to teach PSHE has significantly widened my understanding of teaching and learning”.

According to the PSHE Association, there is someone already in most schools with experience and enthusiasm. Many head teachers have supported its effectiveness. One head teacher said: “It is the heart of what the school is about”. I am told that the real development of better practice in citizenship education took place only after that subject became compulsory. Heads and teachers became geared up to develop or improve their programmes of PSHE once it was announced that it was to become statutory. Now is the time to follow up that enthusiasm.

How do we know that PSHE is effective? It is difficult to assess in the long term, but we know from surveys that young people find information about health useful, and that they recall the messages—for example, about the risks of smoking, drinking and taking drugs. In one survey, 80 per cent of young people said that learning about risks helped them to avoid drugs. Sex education has been shown to delay early sexual activity. Interestingly, some schools have reported a positive influence on academic performance through a personal development programme using coursework to develop transferable skills. One school reported that students across the ability range exceeded their potential, with a 41 per cent rise in students gaining grades A to C.

None of that surprises me. If students are engaged, better able to relate to their peer group and adults, and more confident about their health and relationships, I would think that they would be more effective learners with greater aspirations. That is why so many of us across this House have supported the inclusion of PSHE as a statutory subject in the broad and balanced curriculum. As I said earlier, it is not about party politics. We must send a message to the Government that delaying the inclusion of PSHE puts young people at risk. I urge the Government to act, and I beg to move.

[Baroness Gould of Potternewton]

My Lords, I again support an amendment to make PSHE statutory within the curriculum. I intend to be reasonably brief, because we have had the discussion so many times now. We have explained the advantages of including it as a statutory subject.

I thank the Minister for giving time to discuss the issue with those of us who have been so involved in the debate. However, it became clear from those discussions that we are again bogged down by a curriculum review. PSHE will be judged against the teaching of chemistry or French. PSHE does not equate to subjects which may or may not be used as part of one's future life. PSHE is a lifestyle in all its aspects. By giving PSHE designated space in the timetable, and by providing more specific teacher training, resources and higher profile for the subject generally, young people will be better equipped with the knowledge and skills they need to negotiate the complexities of modern life. Rather, PSHE equates to religious education and music, in the sense that it should be a statutory subject. Those are lifestyle issues. Will religious education and music be included in the review, or will they be exempt?

It is also clear that the independent school regulations, which govern academies, refer to sex and relationship education based around the concept of marriage. Can the Minister cite that clause to the House, so that it is on the record and available for us in future? One way to satisfy that regulation is to ensure that we have PSHE which includes adequate SRE teaching. As I and others have said, teaching good SRE is a means of discouraging early sex. There is evidence to prove that. I give one example. Talking to a 15 year-old girl, I was told that she and her friends had believed that there were no great shakes in taking risks by having early sex. Then they had their PSHE lessons, and they realised that they were wrong. They were then discouraged from adopting that attitude. They also learnt in their PSHE lessons the confidence to be able to say no when the issue arose of whether they should take drugs, drink alcohol or have risky sex. Young people should not glean this information behind the bicycle sheds—I have to admit that, many moons ago, that is where I learnt it all—from playground rumour or from the mixed messages from the media about sex. We need structured classroom teaching giving a clear understanding of the consequences and emphasising the importance of family and friend relationships. This way, we reassure parents that PSHE and SRE do not promote risk taking and early sex, as is sometimes suggested.

17:30

There is no question that parents must take a lead in instilling values in their children, but schools, because of their impartiality, can help in equipping pupils with information and the emotional and social skills to make the safe and healthy choices that were referred to by my noble friend Lady Massey. That should be accompanied by providing parents with information and practical support to help them develop the confidence to talk to their children about emotions, relationships and the dangers of some of the risks that they might want to take. That will also give parents the ability to be involved actively, along with the pupils, in the development of the PSHE programme in the school.

I wish to say a brief word to indicate my support for the comments made by my noble friend Lady Massey on teacher training. She gave a perfect example in citing citizenship, which emphasises that making a subject statutory will be followed by an increase in the number of teachers being trained. There is no reason to delay the decision in order to make sure that there is an adequate number of trained teachers. The barrier to proper staffing and training is the lack of statutory status, and even if there is a delay in implementation—I do not believe that it should be for more than a year—the legislation should be put in place now.

As I indicated in Committee, five years ago the Government funded the PSHE teaching programme, which was also referred to by my noble friend Lady Massey. It has been successful in raising the number of trained teachers and the standard of teaching. I hope that programme will be continued. Can the Minister tell the House whether that will be the case?

Schools are part of the community, and teaching should not be seen in isolation. It should be supplemented by external contributors—representatives of other services, such as nurses, youth workers and Connexions personal advisers. In that way, we can ensure high-quality lessons that range from personal finance to awareness of and sensitivity to diverse faiths and cultural beliefs, understanding discrimination, the wrongness of prejudice and bullying, the consequences of drugs and alcohol misuse and the importance of staying healthy. I firmly believe that not to do so is to fail this generation of children and young people.

I acknowledge that my Government should have legislated earlier to make PSHE statutory, but ultimately they saw the value, they listened to the parents, teachers, school governors and pupils who pressed for its inclusion, and I thank my noble friends Lady Morgan of Drefelin and Lord Knight—my new colleague—for listening and for taking the action they took.

If my noble friend Lady Massey decides to divide the House on this issue, I hope that it will have listened and will follow her into the Lobby. I say to the Minister, with respect, that the evidence is there. The debate does not have to start again from scratch, but unless we hear otherwise from the Minister, we will have to start the process of persuasion once again. I sincerely hope that that will not be the case.

[Baroness Walmsley]

My Lords, I heartily agree with the vast majority of what has just been said by the noble Baronesses. The House knows my view that good quality teaching in PSHE should be the right of all children under the UN Convention on the Rights of the Child. The knowledge and skills covered by the phrase, "Personal, Social, Health and Economic Education", cover all the important things that prepare children for life beyond and within the school, whether they are future rocket scientists or future waste disposal operatives. They are all human beings and deserve our help and support to lead a happy and fulfilled life. That is what PSHE does. It goes far wider than just sex and relationship education, important though that is.

As the noble Baroness, Lady Massey, has mentioned, evidence has shown that schools which do PSHE well also benefit from improved behaviour and learning in other subjects. They are happier schools containing happier, safer and more confident children, which is what I want to see. My ambition within this coalition is to use my passion about this matter and the new influence that I hope I have among both my noble friends and my honourable friends to bring about a step change in the quality and quantity of this sort of learning for all children in all schools.

I am already working with the PSHE Association and others to produce a brief which I will submit to Ministers for the forthcoming curriculum review. It will go far beyond this amendment in two ways. First, it will cover all schools and not just academies. Secondly, it will contain many of the best elements, which, by the way, found support from all around the House, of the original version of Clauses 11 to 13 in the Children, Schools and Families Bill, which were so altered immediately prior to the general election.

That measure, which was deleted from the Bill, listed the areas of learning to be covered but, very importantly, also listed a set of principles that should underpin the teaching. These were, first, that the information taught should be accurate and balanced; secondly, that it should be taught in a way that is appropriate to the age of the pupils concerned and their religious and cultural background and reflect a reasonable range of religious, cultural and other perspectives; and thirdly, PSHE should be taught in a way that promotes equality, encourages acceptance of diversity and emphasises the importance of rights and responsibilities.

In complying with these principles, the school would by definition have to work closely with parents and communities, which is right and proper. These principles are fundamental to delivering the rights that I believe all children have and I know that the noble Baronesses, Lady Massey and Lady Gould, agree with me about that. I congratulate the former Labour Government on putting together something that is so right. I give credit also to those who have worked so hard outside this House, some since the 1960s, to obtain these rights for all children. I am a mere newcomer to this campaign.

However, if we have come so far, we need to get this matter right and I very much regret that I find the simple amendment in the name of the noble Baroness, Lady Massey, wanting in all respects about the principles that I have just listed. I realise why she has made it so simple, but this is not a simple matter. I believe that the earlier approach of the former Labour Government, following extensive consultation, was better. That is what I will seek from within the coalition to achieve for all children and that is why I cannot support this amendment, although I support the aim of the noble Baroness, Lady Massey.

I would ask her not to press this amendment, but to work with me to influence the coalition Government in their curriculum review. We would not be starting from scratch. We already have a very good model, but, in a matter as sensitive as this, we must take all parts of the community with us. This would give us an opportunity to do that.

[Baroness Perry of Southwark]

My Lords, I follow my noble friend Lady Walmsley with great warmth. What she has said is very dear to my heart and I agree with everything. There are very strong feelings about the content of any part of the curriculum. After all, the curriculum is the heritage of knowledge and skills that we pass on to each generation. Everyone has their own strong feelings about what that should be. PSHE arouses particularly strong feelings because it deals with so many of the very sensitive areas of our personal and social lives.

As has been abundantly clear in what my noble friend and the noble Baroness, Lady Massey, have said, PSHE is already widely established in our education system. It is taught in virtually every school and there is already a large cadre of several thousand teachers who have registered themselves as qualified to teach the subject. I commend the enormously good work being done by so many of those teachers in dealing with what are difficult issues, often with difficult pupils at often difficult stages of their lives. They make a huge success of this teaching.

I have two real objections to trying to follow the noble Baroness, Lady Massey, in making this a single curriculum requirement for academies. First, in recent years I have met many teachers dealing with PSHE in, as I have said, difficult classes. They fit what they teach across the areas and how they teach it—whether it be drugs, health, obesity, sex or personal relationships, ethical or civic issues and so on—to the particular class in their particular school with its own particular mix of young people. Schools vary enormously. Some have sophisticated children and others have children who are unsophisticated. Some have children who, by the age of 11, 12 or 13, have alas already engaged in the kind of personal relationships we would rather they were not engaged in, including sexual relationships. The teacher’s skill lies in fitting what they say and how they deal with these issues to their particular class. In my view, that is where PSHE should remain—with the school and the individual teacher deciding what and how it should be taught.

The second reason why I am astonished the noble Baroness has put her amendment in this way is because this would be the only required part of the curriculum and it would only apply to the academies. If this amendment were agreed, PSHE would be a curriculum requirement for academies but not for other schools, and it would be the only part of the academies curriculum that would be a requirement. To me, that is bizarre. People in this House and certainly, I am sure, in the wider world outside would argue just as strongly for other bits of the curriculum to be made mandatory. Surely an important aspect of academies is that they will be free of a national curriculum and able to tailor what they teach and how they teach it within a broad and balanced framework for their particular pupils.

I would ask the noble Baroness not to press her amendment, and if she does, I would ask the House not to support her.

[Lord Knight of Weymouth]

My Lords, I want to comment on this only briefly because much of what I wanted to say about the importance of personal, social, health and economic education has already been made clear by my noble friends Lady Massey and Lady Gould, as well as by the other contributors. But I would say gently to the noble Baroness, Lady Walmsley, that if we pass this amendment, all the proposals of the previous Government, with whom I was associated, can be implemented, certainly in academies. I would say to the noble Baroness, Lady Perry, that the consistency that she thinks there is in the quality of PSHE education is something I would question. The reason why I began the review of sexual and relationship education in our schools was as a result of the Youth Parliament carrying out a survey to which it received an unprecedented 20,000 responses. The vast majority said that the quality of sex and relationship education they received in school was inadequate.

I am not referring to the Clause 28 part of the funding agreement which says that there should be,

“sex and relationship education to ensure that children [of the academy] are protected from inappropriate teaching materials and they learn the nature of marriage and its importance for family life and for bringing up children”.

That may be a part of it, but it is an incredibly partial interpretation of the importance of sex and relationship education. If we are going to tackle early teenage pregnancy and sexually transmitted diseases, good and consistent PSHE in all our schools is crucial so that we can support parents and those children who are not getting that sort of education at home.

At the instigation of my right honourable friend Ed Balls, I co-chaired a review with the Youth Parliament and the principal of Newcastle College, which included representatives of all the faith groups in this country and health organisations, including sexual health organisations. Remarkably, we achieved a consensus about how we should go forward—which is a great tribute to the various representatives—in the most sensitive area of PSHE: sexual relationship education. I received a standing ovation in the middle of a speech—the only time it has happened to me—and people were crying when I announced that we would make it compulsory to have sexual relationship education in all schools. The people who teach the subject of association understand its vital importance and it was sad that it was lost in the wash-up prior to the election. I hope that we can make progress by passing the amendment today.

[The Lord Bishop of Lincoln]

My Lords, I am pleased to follow the noble Lord, Lord Knight, because, as he will recall, our board of education was anxious to work with the then Government on that Bill. We were very supportive of what was emerging in the Bill and we were as saddened as others by its eventual fate. I therefore thank the noble Baroness, Lady Massey, for bringing forward the amendment—and I do not always say that about her amendments. However, I do on this one because everyone in the House, as we have heard, has good reason to be sympathetic to the principle of PSHE and wishes to see it delivered, at the highest possible standards, across our education system.

That may prompt noble Lords to ask why the church so often seems to be in the forefront of those resisting this kind of development. It is a good question. I do not always appreciate the answers I get from within my own constituency but, at the heart of it all, something needs to be said in this debate before we get carried away with all the positives and affirmatives: there are implications for some of our understandings of childhood and we must not go down the Pollyanna school of pedagogy. None the less, we all appreciate that something gets lost when some elements of children’s education come in earlier than is perhaps appropriate to the well-being of the child at quite an early age.

The motives of the noble Baroness, Lady Massey, are honourable and I support the underlying principle, but I do so in the spirit of the noble Baroness, Lady Walmsley, for two reasons. First, there is not much detail in the amendment and I need to know a great deal more about what is described here as PHSE. At what age will it be introduced? As the Academies Bill will affect primary as well as secondary schools, the question of age kicks in. I want to know more about its content and whether it will be consistently provided across the country and by whom. All this seems to be within the purview of the curriculum review, to which the noble Baroness, Lady Walmsley, has referred. Out of that may come more detail which will enable some of us to give a fair wind to the spirit of the amendment.

I wonder whether this is the place to pursue this important agenda, partly because, as the noble Lord, Lord Knight, the noble Baroness, Lady Perry, and others, have said, it applies only to academies. If it is as good as many believe it is, it ought to be good for all, not only for some. I would support a process that would enable this to become part of the agenda for all our children and not only for some who happen to be in schools which have converted to academy status. While I support wholeheartedly the spirit of the amendment, I would not be able to go into the Lobby with the noble Baroness, Lady Massey, for those reasons.

I look forward to the debate continuing and to engaging with this Government, as we did with the last, to achieve something that will be for the common good of all our children. We want them to experience and enjoy relationships, as given by God, so that they can have fulfilled lives—sexually, in terms of their health, in terms of their economic management and, most of all, in terms of their personal well-being and delivery of their potential.

[Baroness Howe of Idlicote]

My Lords, this has been a stimulating and diverse debate. I thank the noble Baroness, Lady Massey, for her amendment. Academies have the advantage of being able to teach in a way that they think appropriate to their pupils. That would be a plus in making PSHE a curriculum requirement and we could get it started in the academy set-up.

I agree that it is sad that PSHE has not been included in the curriculum as a result of bits being struck out of rushed legislation in the final days of the previous Government. However, that is as it may be; I can see no reason why we should not start with this Bill and see at a later stage whether it needs extending. The noble Baroness, Lady Perry, said that PSHE is taught in practically every school, yet we hear from the noble Lord, Lord Knight, that it is taught neither well nor in a way that young people approve of and can gain from. So it is clear that there is a need for rather greater teacher training, too.

I am only sad that my noble friend Lord Northbourne is not here, because he would have stressed, as have I on previous occasions, that here is an ideal framework within which to teach parenting. I am talking not just about relationships with one’s own parents but also, and much more importantly, about the relationship that a parent will have with their children and their responsibilities to the rising generation. That will be of enormous value to young people when they think about whether to use contraceptives at the age of 10 or, better still, to refrain from sex altogether. When I was chair of the Broadcasting Standards Commission some way back, a lot of issues of this kind were brought to us by worried and concerned parents. What children see on television today, and sometimes even hear on the radio, is enough to make it important that we educate children as early as possible to deal with these situations.

My thanks still go to the mover of the amendment. If we are pushed to a vote on it, my instinct will be to go into the Lobby with her. In the mean time, we all need to think about even more ways in which we can get over the important message behind all this.

[Baroness Howarth of Breckland]

My Lords, I had not intended to speak today as I have not had the opportunity, for various reasons, to become engaged in the Academies Bill. I should like to ask the Minister a couple of quite simple questions. If this proposal were to be delayed today, what timetable would there be for bringing it back in the way that the noble Baroness, Lady Walmsley, suggested? We are told that the Government have an education Bill coming along in the autumn. What guarantees can he give that this subject will be in that Bill?

I have heard at least four of the noble Baronesses whom I admire most in this House speak on opposite sides in this debate. I say to the noble Baroness, Lady Perry, that this subject is different from all the others. I have said previously in this House that, unless we attend to the welfare of our young people, they will never learn the other subjects that they are in school to learn. This topic attends to their welfare. It ensures that they have the life skills and confidence to move forward in all the other subjects that they are trying to achieve with all the other hopes that they have in order to attain a good life position and life skills. I talk to a lot of children and remember my life in ChildLine, and I feel that unless this is grasped soon we will lose more children who do not understand the issues.

My noble friend Lady Howe has just talked about the influences around young people. I also talk to a lot of parents. They may often feel anxious about some of these topics being taught, but they are even more anxious about the influences on their children without having facts and information. In ChildLine, I talked to one child after another one and one young person after another who had curious and false information. I am told by my colleagues still working there that that continues. I have been out of ChildLine for 10 years and it is a great indictment that we have not yet got these topics in schools so that young people have, as the noble Baroness, Lady Walmsley, would say, their rights, because it is a right to have this information.

The Government should grasp this nettle now so that we do not lose time and more children. If they do not and if the noble Baroness does not divide the House, I should like the Minister to give us a timetable so that we know when this can be taken forward.

[Lord Waddington]

My Lords, it is with considerable diffidence that I rise, because I have not spoken before on this Bill. The amendment moved by the noble Baroness, Lady Massey, does not go as far as the one she moved in Committee. It does not remove the right of parents to withdraw children from sex education as that amendment did. But it does, for the first time, make sex education statutory in some primary schools. It is with sex education that I am concerned.

Obviously, it would be strange if sex education were made compulsory in academy primary schools, but not in maintained primary schools, particularly when academies are supposed to have greater freedom and other schools rather than less. Surely academies should be free to choose not to provide sex education for children of primary school age when the school and parents think that it would not be appropriate.

It cannot be denied that this is a very important and sensitive matter involving people's views on morality and religion, and on the right way to bring up children, with many people feeling strongly that young people should not be taught about sex unless it is put very much in a moral context. I do not believe that this crucial subject should be dealt with at the Report stage of a Bill such as this and weighed off in a short debate: it is far too important for that. This Bill is about whether there should be academies at all, not about how, if at all, sex education should be taught in primary schools.

18:00

[Lord Lucas]

My Lords, when it comes to this amendment, I stand four-square beside my noble friend Lady Walmsley. I congratulate the noble Baronesses opposite on all the effort that they have put into this subject. One of the most important things about schools is that we should try to produce young people who are well informed and resilient and go out into life able to deal with it, which was certainly not the case in my education. Indeed, a recent survey from the University of Oxford showed that 85 per cent of its graduates were frightened of getting a job. There is a good deal to do in schools in one way or another.

However, I entirely agree with my noble friend that this is the wrong amendment in the wrong place. It is too restrictive and too simple and applies only to academies. We need this to be part of the curriculum review that my noble friend has promised. That is the pressure point to which we ought to be applying ourselves.

I am also concerned because the phrase PSHE associates itself in my mind—and perhaps my noble friend will educate me—with a rather clunky, didactic, old-fashioned way in which to approach these things. That is at a time when, if one goes around schools, which I do a good deal for the Good Schools Guide, one sees a lot of new, interesting and innovative approaches to this aspect of schooling, which I would not want to close out by including it in a process-based curriculum rather than requirements for what the children should be like when they leave school. It is one of the faults of the curriculum that we have at the moment that things such as citizenship have to be added as extra subjects when really they should be there as outcomes and it is up to the school to decide how they are delivered. I cite in particular the work on positive psychology and well-being that started with Wellington College and has spread widely from there. Also, I attended a presentation for schools, part of which was a presentation by a primary school in the East End on its use of psychology lessons. It taught psychology as a separate subject and with immense good effects. As the noble Baroness said, once you get it right, it spreads though the school, from attitude to education generally and to behaviour. I do not want to see this subject fossilised in a set of requirements, as the curriculum is set out at the moment, certainly not without the sort of discussion and understanding of the subtleties that would occur through a proper participation in the curriculum review.

[Viscount Eccles]

My Lords, I start by saying that I was nothing like so fortunate behind the bicycle sheds as the noble Baroness, Lady Gould.

I have been waiting to hear what the House thinks the reaction of the teachers would be to making this a statutory requirement at this particular moment. There was a report done by the Merits Committee and the noble Lord, Lord Knight, gave the committee his evidence on two occasions, written and spoken. The memorandum submitted by the Association of Teachers and Lecturers said:

“In the recent past, too many professional judgements about curriculum, assessment and pedagogy have been removed from teachers and placed in the hands of ministers, government departments and agencies”.

It went on to say that this,

“shows a lack of trust in the profession and a denial of complexity”.

The whole House is agreed with the objectives of the noble Baronesses opposite and the objectives of my noble friend Lady Walmsley. The teaching profession is in agreement with those objectives as well. The question is how you best get those objectives achieved; in my submission, that will not happen by including a statutory requirement in this Bill.

[Baroness Morgan of Drefelin]

My Lords, it is with great pleasure that I rise to support my noble friends Lady Massey and Lady Gould. I was also particularly moved by the remarks of the noble Baroness, Lady Howarth. It is extremely important that, if my noble friend chooses not to divide—and I do not know what her choice will be—we hear from the Minister what practical steps the Government will take on this key agenda. I was interested to hear again from the noble Baroness, Lady Walmsley, her exultation about the work of the previous Government around the proposals contained in the Children, Schools and Families Bill, which were removed on the specific request of the Conservative Opposition, as the noble Lord is aware. Before the election we had a set of principles and proposals that commanded the support of a significant part of the coalition Government and of a great number of noble Lords across the House.

My noble friend Lady Massey came forward with a very thoughtful proposal; she did not just reproduce what was in the Children, Schools and Families Bill, which the Government can do at any time just by going back to the filing system or doing a cut and paste. Here we have a practical step forward for going forward in this Bill. That is why I should like to have the opportunity to support the amendment. I see no reason why we should delay. Noble Lords have raised concerns about the numbers of teachers qualified to teach PSHE, but we have been reassured on that. There have been concerns about whether we are talking about teaching sex education to children inappropriately in primary schools. In all the debates we have had there have been umpteen reassurances about age-appropriateness. I do not think that this should be a party-political issue. It is very much a House of Lords issue, as it is very much something that the House of Lords has debated many times. We came up with a very constructive way forward only a few months ago. There is no good reason for us to delay any further.

If the Government want to bring forward any tidying-up amendments at Third Reading, that is very much in their gift. It can be done. We are all behind the principles that the noble Baroness, Lady Walmsley, described, which were in the previous Bill. They are great—yes, we could see those come forward at Third Reading. I see no reason to delay, as this is about common sense and supporting the professionals. I am delighted that they gave my noble friend Lord Knight a standing ovation when he addressed the professionals in this field. We can get on with this. It is a regret of mine that it took us, in a Labour Government, as long as it did to consult and come to consensus and to the settlement that we did. It took us a while, so let us not take any longer.

[Lord Hill of Oareford]

My Lords, we had a very good debate on this subject in Committee, a slightly longer debate than the one that we have had today. We have had another very good debate this afternoon. I had the chance last week to meet Peers with a particular interest in PSHE and was grateful for their advice. I join others in paying tribute to the noble Baroness, Lady Massey, for the way that she has pursued this issue, as have my noble friend Lady Walmsley and many other noble Lords from all parts of the House. I have learnt a lot from noble Lords in the process, not least about knitting from the noble Baroness, Lady Massey—a reference lost on those who were not here for the Committee stage.

What is clear to me, who comes relatively new to this debate, is that there is broad agreement in this House on the importance of PSHE. Nothing has been said today by anyone from any part of the House that would disagree with that. There are differences of opinion about the best way forward. This evening the question is relatively simple and straightforward, so I think I can be brief. This is an important and broad subject. Should we, as this amendment argues, make PSHE a compulsory requirement for academies alone as one distinct set of schools and should we act now? Those are the two main questions that have been debated this evening. I would argue not. First, as others have said, I am not convinced that singling out PSHE in primary legislation is the right way to go. Secondly, I would argue, as a number of noble Lords have argued—it was argued very persuasively by the right reverend Prelate the Bishop of Lincoln—that the best place to consider these issues is in the round, when we get the chance to look at the whole question of the national curriculum later in the year. Noble Lords have already mentioned that we are carrying out a complete review.

In response to the question from the noble Baroness, Lady Murphy—

[Noble Lords]

Baroness Howarth.

[Lord Hill of Oareford]

Forgive me. I cannot be more specific than to say that we expect that the review will take place in the autumn, and it will have a proper look at the entire national curriculum. I know that when that process starts, and as part of that review, noble Lords will not hesitate to make their views known. There will be plenty of opportunities to debate it in the round at that point in the context of the whole curriculum rather than, as many noble Lords have said today, in more of a one-off way now.

I am swayed by the comments that have been made about having the debate later. This is not to dismiss the case made by the noble Baroness, Lady Massey. It is, however, to ask her and other noble Lords whether in the light of these points they will withdraw their amendment at this juncture, having made clear their intention to return to the charge at a later date.

[Baroness Massey of Darwen]

My Lords, this has been a fascinating and enlightening debate. I think that we are all actually on the same side; we just have different ways of approaching the issue.

I am aware of the curriculum review, but I have been aware of curriculum reviews on this subject for the past 10 years. We have gone over this ground, and in doing so I am also aware of the needs of children who may well be suffering because they do not have this education in their curriculum. Young people tell us what they need, and they certainly tell us that they need personal, social and health education.

I shall respond briefly to points that have been made. I put this amendment in here because the Bill is here, and because I shall continue to put it in any Bill that I can to try to get personal, social and health education in the curriculum.

It is a simple amendment because it is a complex subject. We have explored all possible areas connected with PSHE, today and previously. The noble Baroness, Lady Walmsley, mentioned the five principles put in place by the Labour Government, and they are still there for reference. I was surprised; I just reread the noble Baroness’s speech at wash-up stage, and at that point she wanted no delay, she wanted to get on with it and she was anxious that PSHE should be part of the national curriculum. I support her.

Much work has been done already—

[Baroness Walmsley]

If the noble Baroness will permit me, I say to her that I still think that, but I have to convince my Government of the case, not just the former Government.

[Baroness Massey of Darwen]

My Lords, I, too, intend to convince this Government of the case.

I know that much work has been done on this already. I believe that schools are ready to take this on, and it would improve their chances if PSHE were a compulsory subject. I have in my hand 10 reasons why there is no need to delay, written by the Personal, Social and Health Education Association. Noble Lords will be relieved to hear that I am not going to read out the whole document, but one section says that we have had just a year and half since Jim Knight, now the noble Lord, Lord Knight, announced the last government’s intention to make it statutory, “it” being PSHE, and that most schools will have been gearing up for statutory status during that time. It says that PSHE is not a new subject; it has been taught in schools and been allocated curriculum and staffing resources for many years. I think that might respond wisely to something that the noble Baroness, Lady Perry, said.

If we pass the amendment today—I intend to divide the House—it will send a clear message to the Government and to all parties that the welfare of children is at stake here. If a large number of people support this amendment, it will be a key message to the Government that this is an important subject that we do not take lightly. Let us go on from here and incorporate PSHE into all schools, through different Bills. Let us go through a curriculum review, but let us influence that review as best we can by showing today that we think this is an important subject that deserves our attention and our commitment. I wish to divide the House.

18:15

Division 1

Ayes: 156

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Labour: 129
Crossbench: 19
Liberal Democrat: 1
Independent: 1

Noes: 245

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Conservative: 142
Liberal Democrat: 51
Crossbench: 31
Labour: 6
Democratic Unionist Party: 3
Bishops: 1
UK Independence Party: 1
Ulster Unionist Party: 1
Independent: 1

18:30

Amendment 10

Moved by

[Baroness Walmsley]

10: Clause 1, page 2, line 3, at end insert “and sections 40, 41, 42 and 43 of the Childcare Act 2006”

[Baroness Walmsley]

My Lords, Amendment 10 arises from our debate in Committee about the impact of the new legislation on the early years. The Bill remains ambiguous about the care and education of young children and needs specifically to reference the Childcare Act 2006, which establishes the EYFS framework in law. The purpose of this amendment is to ensure that young children in academies are guaranteed the same balanced, age-appropriate and play-based standard of care and education under the early years foundation stage as children in maintained and independent schools.

In Committee the Minister said:

“I would suggest that the amendment is unnecessary because academies are already required, under the Childcare Act 2006, to provide the early years foundation stage. That is spelled out explicitly in their funding agreement. This stage is more than just a curriculum, as it covers much broader outcomes for very young children, including issues such as social skills”.—[Official Report, 28/6/10; col. 1570.]

The Early Childhood Forum, which has been briefing me on this matter, very much welcomes the Minister’s positive statements about the EYFS. I also welcome Minister of State Sarah Teather’s announcement a few days ago that the early years foundation stage is to be reviewed. I called for this in my speech in Committee, though I do not think her announcement was simply in response to my speech. I am delighted that the Minister stated that it is the Government’s intention that academies should implement the EYFS. However, I am still concerned that the Bill makes no reference at all to the EYFS, and that furthermore the Childcare Act 2006, to which the Minister referred, contains no reference to academies. This seems to leave an ambiguity in the law that could be easily rectified via this amendment.

Academies do not have to follow the national curriculum for primary and secondary schools. The only reference in the Bill to the curriculum is to Section 78 of the Education Act 2002, which has no application to the education of those aged under five, since the Childcare Act 2006 amended the Education Act before it and removed any reference to nursery education. The Childcare Act 2006 establishes the EYFS as the framework for the care and education of children from birth until the 31 August after their fifth birthday, and which all those registered on the early years register and maintained, approved, non-maintained, independent and special schools must deliver. Under the law, all these providers must meet the legal welfare, learning and development requirements as set out in Section 40 of the Childcare Act 2006 and its associated regulations.

Existing academies are not referenced at all in the Childcare Act 2006. This is an understandable omission as, although there are a number of all-through academies providing education for three to 18 year-olds, until now academy status was available only to secondary schools. The Bill extends academies to many more young children and therefore needs to be unambiguous about the approach to be taken to their education and care. It is clearly not the Government’s intention to exempt academies from implementation of the EYFS. The Early Childhood Forum is concerned that academies do not fall into any of the categories of school referenced in the Childcare Act 2006. It has tried to clarify this matter with officials but they have not replied to its phone calls. Perhaps they were in purdah, pending the Minister’s statement the other day about the review of the early years foundation stage. However, it would be helpful to know the Government’s understanding of where academies fit in the framework of that Act. Perhaps this might have been sorted out if officials had responded to the Early Childhood Forum. I may not have needed, in that case, to table this amendment. It would also be helpful to know how many of the current all-through academies provide education for under-fives and whether they all currently implement the early years foundation stage as they should.

There is some confusion about whether the Government consider academies to be independent schools in law. Clause 1 refers to academies as “independent”, but it also sets out that they are to be funded directly by public money through the Secretary of State. The Independent Schools Council membership criteria determine independence through the individual school’s inspection regime, with members having to be inspected by the Independent Schools Inspectorate. However, academies—as far as they are to be inspected at all—will be under Ofsted. Noble Lords can perhaps see the confusion.

The early years foundation stage is based on the best evidence that we have from research and experience of what is most effective in helping children to develop physically, intellectually, emotionally and socially. The amendment would create parity and balance in this new legislation that matches the reference to Section 78 of the Education Act 2002 on the curriculum for those aged over five in Clause 1. I urge the Minister to accept it or to explain very clearly why it is unnecessary. If he accepts that there is a problem in the Bill and its relationship with the Childcare Act, I hope he will not ask us to wait for the pending early years foundation stage review. This would mean that primary academies and the young children in their care would be left in limbo and outside the current main framework until then. If the outcome of the review is a fundamental change, the Childcare Act would need to be amended in any case, and the legislation on academies would be resolved alongside that for all the other types of school. I beg to move.

[Baroness Morgan of Drefelin]

My Lords, I added my name to this amendment. From listening to the speech of the noble Baroness, Lady Walmsley, I think I have had exactly the same briefing as her. I simply wish to say “ditto”.

I am slightly concerned that in some things we need to rush ahead with, and in others to hang back from, reviews. It is very important for the Early Childhood Forum and the incredibly important organisations that make up the forum to have the kind of reassurances that the noble Baroness is looking for. The early years foundation stage was a very important step forward. The previous Government initiated it, and it has been well received. It is important that we build on the work of the early years specialists. I look forward to hearing what the Minister has to say.

[The Earl of Listowel]

Briefly, I support this amendment. The Government recently expressed some horror at the number of prisoners we now have in our prisons. It made me reflect on how many inquiries have pointed to problems within our families. When one does not provide good boundaries within families and a secure upbringing for children, and when schools are quite chaotic, it does not surprise me that there is so much offending among young people or that we have overcrowded jails. It seems to me fairly apparent that if one does not set boundaries early in life, society is left setting boundaries later in life, at great expense to itself. Therefore, it is imperative to get all the right support for children early on. This is an important area. I look forward to the Minister’s reassurance that the early years foundation stage will be delivered in these schools.

[Lord Wallace of Saltaire]

My Lords, when I first joined the House of Lords, we did not receive any briefings on anything. That situation has been transformed in the 15 years I have been here so that now, on a Bill such as this, we are deluged with briefings, which are often extremely useful.

On behalf of the Minister and the department, I apologise for unreturned phone calls. I offer, if it is helpful, a meeting with the Minister and officials to discuss this question further. On the specific issue, I reassure the noble Baroness that all schools providing for under-threes’ education are required under the Childcare Act to register with Ofsted and to deliver the early years foundation stage. This includes independent schools and therefore also includes academies. Section 40 sets out the duty to deliver the early years foundation stage. That is the key element. This already applies to academies in the same way as it does to other schools.

Reference has already been made to the review to be carried out by Dame Clare Tickell, chief executive of Action for Children, which will report to my honourable friend Sarah Teather in spring 2011. The review will be open and will look at the foundations that should be in place to protect young children’s welfare and support their development and learning. It will also consider throughout how to reduce burdens on providers as the experience of the past three years is that the requirements of the early years foundation stage have increased the workload on many of those who work with young children, and so taken time away from children. We do not intend a fundamental change but we do intend to review the way in which the Act works in practice. I hope that that is sufficient assurance. I again apologise if phone calls have not been returned. With those assurances, I hope that my noble friend will feel able to withdraw the amendment.

[Baroness Walmsley]

I thank the Minister for his reply and the noble Baroness, Lady Morgan of Drefelin, for her support. The noble Lord says that academies will have to deliver the early years foundation stage. However, it does not say that in the Bill. The difficulty has arisen because of uncertainty about the independent status—or not—of academies. According to independent schools, the definition of “independent” is a school that is inspected by the Independent Schools Inspectorate. However, that does not apply to the schools that we are discussing. Nevertheless, the Minister could not have been clearer on that matter. I suspect that the Early Childhood Forum will very much welcome a meeting with officials to set its mind totally at rest. It will probably be satisfied with the clarity of the Minister’s reply, but I think that it will take advantage of the invitation anyway. I wait to hear what it says to me when that meeting has taken place. I beg leave to withdraw the amendment.

Amendment 10 withdrawn.

Amendments 10A to 10C not moved.

18:45

Amendment 11

Moved by

[Lord Hill of Oareford]

11: Clause 1, page 2, line 9, at end insert—
“( ) Academy arrangements in relation to a school within subsection (5)(a)(i) must include provision imposing obligations on the proprietor of the school that are equivalent to the SEN obligations.
( ) “The SEN obligations” are the obligations imposed on governing bodies of maintained schools by—
(a) Chapter 1 of Part 4 of EA 1996 (children with special educational needs), and(b) regulations made under any provision of that Chapter.”

[Lord Hill of Oareford]

My Lords, I shall seek to be brief with this amendment as I have already written to noble Lords about it and we discussed these issues at length in Committee.

The purpose of this government amendment is simple; it is to ensure that the obligations placed on academies in respect of SEN mirror those placed on maintained schools. I said early on in Committee that I could not see in principle why one set of state-funded schools should treat children with SEN any differently from another set of state-funded schools. Having listened to the points that were raised in debate and having had a number of subsequent meetings on SEN with noble Lords who are far more experienced than I, my initial instinct has been confirmed and I am very glad to have this opportunity to move this amendment, which should put the principle of parity beyond doubt.

As noble Lords are aware, academies are already required, through their funding agreements, to provide for pupils with SEN in a similar way to maintained schools. Noble Lords will also know that the funding agreement has been the main regulatory mechanism for academies since their inception, as we discussed this afternoon. We agree with the previous Government that this should continue. We could therefore have ensured parity through the funding agreement alone. However, we decided to go further. This amendment acknowledges the particular concerns that have been raised in relation to SEN and will therefore put into the Bill a requirement that academy arrangements—either funding agreements or grants—must contain provisions that impose obligations that are equivalent to those that are imposed on maintained schools in Part 4, and in regulations made under Part 4, of the Education Act 1996. This means that no funding agreement could omit these provisions unless further primary legislation were made to remove these requirements.

In practical terms, the amendment imposes additional obligations on academies to: inform parents that their child has SEN and of the special educational provision being made; accept the naming of the academy on a child’s statement; and appoint as a SENCO a person who is a qualified teacher. Moreover, new SENCOs will have to undertake prescribed training. It will apply to any new academy and to any existing academy that enters into new funding arrangements.

At this point I would also like to put on record the reassurance I gave the noble Lord, Lord Rix, at our meeting on 1 July that it is the Government’s policy that academy special schools should offer a broad and balanced curriculum that meets the needs of an individual child as specified in their statement of special educational need. I am very pleased to have the chance to move this amendment. I hope that it will provide assurance that the SEN obligations on academies will mirror those that are placed on maintained schools. I beg to move.

[Lord Low of Dalston]

My Lords, I wish to speak to Amendments 12 to 14 and to Amendment 39, all of which are in my name. I very much welcome government Amendment 11, to which the Minister has just spoken. In Committee, there was a widespread concern throughout the Chamber to ensure that academies were put on the same footing as maintained schools as regards admitting and meeting the needs of pupils with special educational needs. The Minister said then that he would reflect and come back with proposals on how parity could be achieved. As we have heard, he has been as good as his word. I am very grateful to him for this and for the time and trouble that he has taken to meet Peers to discuss their concerns. I am also most grateful to officials for the time that they have taken to make sure that we get this absolutely right.

For my part, I think that we have very nearly got it right, but not quite. That is why I have put down the amendments to which I am speaking this evening. I spoke on this at some length in Committee, so I shall not weary the House by going over the same ground all over again. The Minister has met very many of the concerns that I raised in Committee, but one or two issues still remain. The first is whether the new provisions will relate to existing as well as new academies. In moving his amendment, the Minister has clarified that because he has said that they will do so. However, I think he said that they would apply to existing academies when they entered into a new agreement. That could be some years away. I hope that the Minister can reassure us that steps will be taken to apply the new provisions to existing academies at the earliest possible date and not necessarily waiting several years before doing so.

Secondly, there is the question of whether obligations that are equivalent to the SEN obligations in the Minister’s amendment are the same in their effect as the SEN obligations. If not, it will be argued in court that Parliament’s decision not to make these obligations direct statutory obligations must indicate an intention to permit variation from the statutory framework. I should therefore be grateful if the Minister could confirm that the intention is for academies to be subject to exactly the same obligations as maintained schools as regards admitting and meeting the needs of pupils with special educational needs, which the notion of parity would imply.

My main concern is with the enforceability of the rights implied by these obligations. The Minister has chosen to confer the obligations by importing the statutory SEN framework into the contractual framework of academy arrangements. These are contractual agreements between the Secretary of State and an academy to which parents and pupils are not a party. There is a complex legal argument as to whether the duties imported into academy arrangements by this means are enforceable by parents or pupils. I shall spare the House all the legal technicalities, but there are essentially three ways that one might seek to ensure that the duties are enforceable.

The first is by laying on academies the same statutory obligations as those laid on maintained schools directly by statute, not by statutorily importing them into a contract. That is what my Amendment 14 would do and I still think that it is the simplest and surest way to achieve my aim, which is why I have tabled that amendment again and why it would save a lot of bother by putting everything beyond doubt, if the Minister agreed to it.

Assuming that the Minister’s preference is to proceed by the contractual route and to maintain the contractual relationship with academies, there are two further ways that one might seek to enforce the contractual obligations. One is through a complaints procedure and the other is by making it clear that pupils and parents can enforce their rights by judicial review.

As for complaints procedures, complaints would presumably be made to the Secretary of State, but there is nothing that establishes such a procedure and nothing is proposed. Even if there were, it would need to be clear that if the Secretary of State found that an academy had not complied with the relevant provisions of the academy arrangements, he would require the academy to comply, and the arrangements would need to make clear that he could compel compliance. This would place a considerable additional burden on the Secretary of State, whose process for dealing with complaints is already widely perceived to be slow and ineffective—as is illustrated by the fact that it is never suggested by defendants in proceedings for judicial review that the court should decline jurisdiction because a complaint to the Secretary of State would provide an effective alternative remedy.

As for judicial review, the availability of this remedy could be put beyond doubt simply by making clear that the rights accorded to pupils and parents under academy arrangements could be enforced through judicial review. This could be done on a narrow basis relating to SEN only, as is provided for in Amendment 12, or on a wider basis covering all rights given to parents and pupils, as provided for in Amendment 13. Amendment 12 would sort out the problem relating to special educational needs, but would, if anything, weaken the position in relation to other rights—say, those relating to admissions—because it would imply that those rights could not be enforced through judicial review.

The Minister has shown himself to be very accommodating of our concerns in the quest to achieve full parity between academies and maintained schools. I hope that further discussion may be possible before Third Reading, with a view to finding a formula which would ensure that enforceability is not only a reality, but is seen to be a reality, either through a robust complaints procedure or by putting it beyond doubt that judicial review is available as a remedy.

Something along the lines of Amendments 12 or 13 would do the job for judicial review, and I have suggestions for a robust complaints procedure that I would be happy to put to the Minister. Amendment 39 begins the job, but even that requires fleshing out in some respects to reflect the ingredients of a robust complaints procedure. If the Minister would be happy to proceed along these lines, I am sure that we could reach an arrangement that would put enforceability beyond doubt and would be satisfactory to everyone. If full parity is the Minister’s aim, I cannot see a reason not to do this.

[Baroness Wilkins]

My Lords, I echo the thanks of the noble Lord, Lord Low, to the Minister for all his time and the concern that he has given to this issue. I support the noble Lord, Lord Low, in his amendments and hope that the Minister will meet his concerns and satisfy him fully.

[Lord Hunt of Kings Heath]

I, too, warmly thank the Minister for bringing his amendment. It certainly shows that he has listened to the House and we are grateful. I also support the noble Lord, Lord Low. He raises important issues in relation to JR and I am sure that the Minister will be able to respond positively.

I should like to raise a further issue on this group of amendments which relates to SEN funding. It arises from the potential decline in the ability of local authorities to fund support services for SEN pupils which would result from an increase in the overall number of academies.

At the moment, local authorities retain a proportion of funding related to the number of schools that they maintain for the provision of central services, including those for special educational needs. While the overall level of funding within a local authority area may well not fall as a result of this process, the reallocation of resources away from local authorities to individual schools can have potentially significant effects for children and young people with SEN.

We widely accept that the provision of special educational needs support is at the most expensive end, or at least the more expensive end, of the educational spectrum. A key feature of local authority provision is that it allows a local authority to ensure that finite resources are spent effectively through the ability of the local authority to generate economies of scale.

This matter will come up later in Amendment 21, to be moved by my noble friend Lady Wilkins, on low-incidence SEN. However, it actually raises a more general issue of principle. In the letter that the Minister circulated to us and to my noble friend, he states that academies are able to buy in SEN support services from their local authority, from neighbouring local authorities or from other providers. I understand that principle, but I ask him to reflect on the circumstances. Because there will clearly be no requirement for an academy to purchase services from its local authority, current services might be at risk. In particular, the expertise that individual local authorities have established might not be available to academies, because resources are no longer there to support it. There is also a risk that the provision of SEN support on an individual school basis might be more expensive than that which could be accessed by the local authority.

The noble Lord may say that the problem will not arise, that essentially he is proposing a market-based solution and that because of that the combination of academies making their own decisions will ensure a satisfactory outcome. I should mention again my NHS experience, because what is happening here is very much in parallel to the decentralisation that has been undertaken in the National Health Service. My experience has been that in that process specialist services can actually lose out and that if they do, the Government have to find some mechanism for intervention to make sure that those specialist services, as a whole, continue to be provided. I give advanced warning that I will raise this again in the debate on my noble friend’s amendment. It would be useful to have some indication from the Government that they understand the issue and that there is a mechanism by which they can deal with it. If the noble Lord had accepted my suggestion that a statutory duty of partnership might be laid on all parties, that might have been one way through.

18:59

[Lord Lucas]

My Lords, the noble Lord, Lord Low, echoed the point that I made on Amendment 8 about how we keep academy agreements up to date. If I remember rightly, he said that for existing academies the only way to do this is to terminate the agreement and renegotiate it. Will my noble friend undertake to give notice of termination to all existing academies so that the arrangement that he has arrived at for special educational needs can be incorporated into their agreements? I imagine that most of them will choose to renegotiate ahead of time and not go through the catharsis of termination. That would seem to be the procedure that we ought to go through in order to bring all academies into line with what the Government now believe should be the line.

I also ask for his assurance that with this Bill it is the Government's intention that the model agreement should allow for the obligations on academies to update in line with those placed on maintained schools generally, and that we will not have to go through this procedure of issuing a notice of termination every time we change the SEN rules, the admissions rules or anything else that academies are supposed to follow.

[Baroness Garden of Frognal]

My Lords, I support Amendment 11 in the name of the Minister and also flag up that we have complementary amendments coming up in the same group as Amendment 22. We have had a query from TreeHouse, which deals with autistic children, asking for assurances on the funding for non-maintained special schools. Under these arrangements, the funding will go directly to academies and not via local councils. Currently, local councils top-slice 7 to 10 per cent from the dedicated schools budget, which includes placements for children at non-maintained schools. Will the Minister reassure us about these arrangements?

[Baroness Sharp of Guildford]

My Lords, will the Minister clarify the position of parents in relation to first-tier tribunals, SEN and disabilities? The annexe about SEN that goes with the agreement and that was circulated to us makes it clear that parents and pupils at academies have the same rights of access to first-tier tribunals, SEN and disabilities, formerly SENDIST. Most academies must comply with an order from the tribunal. Is there a notion of judicial review if there is still not compliance with the order from the tribunal?

[The Earl of Listowel]

My Lords, I support what the noble Lord, Lord Hunt of Kings Heath, said about health service reforms and the difficulty with regard to specialist health services. The National Society for the Prevention of Cruelty to Children runs such a specialist service in Kentish Town, north London. It works with children who sexually harm other children. It is a very intensive service. If these children are not given the service that they need, they sometimes go on to become adults who continue to abuse children. It is a very important service, but it has proved difficult for the NSPCC to get the funding that it needs through applying to local PCTs. This is one example of where regional planning and funding can be very helpful. I hope that the Minister will keep in mind what the noble Lord said.

[Lord Hill of Oareford]

My Lords, I start by thanking various noble Lords for their support for the government amendment. In particular, I thank the noble Lord, Lord Low, for his thanks to my officials, who I know have worked extremely closely with him and his advisers. They have spent so much time working on this that they have almost moved in together.

I will respond to the points made by the noble Lord, Lord Hunt, rather than to the noble Baroness, Lady Wilkins. He asked whether the Government were aware of the issue and whether we were thinking about what to do if the issues that he alluded to came to pass. The answer is yes. It is a fair point and we will no doubt return to it later.

The question of funding is a fiendishly complicated area, because some aspects of SEN funding, and the responsibility to discharge it, will remain with the local authority and some will not. Rather than trying to answer in detail, it is probably better if I respond subsequently and pick up on the points. I will respond to one specific question concerning the funding of non-maintained special schools. There are no plans to change the funding arrangements for those schools. I will respond in a more considered way in writing if I can.

I may be able to offer the noble Lord, Lord Low, some—but probably not total—comfort. I am happy to confirm that parents have always had the power to seek judicial review against either the academy for failing to follow its contractual obligations or the Secretary of State for failing to ensure that the academy complies with its obligations under the funding agreement. It would be unique in law to provide for judicial review to apply in particular circumstances. I am advised that the issue of whether any person can apply for judicial review will be determined by the courts in accordance with Civil Procedure Rules. The Government's view is that the issue should properly be determined by the courts, and the House may not wish to set a precedent in this area. However, I can perhaps help the noble Lord a little by saying on the record that in recognition of his concerns, we will place a new provision in academy funding agreements that will enable the Secretary of State to direct an academy to fulfil any of the obligations imposed by the SEN annexe of the funding agreement. The agreement already enables the Secretary of State to direct an academy to admit a child.

As far as concerns a new timetable for the complaints process, I am sure that, as on many issues, we will discuss these matters further in due course. The YPLA currently administers a complaints process on behalf of the Secretary of State. I entirely accept that that process is necessary and confirm that we intend to continue to provide for it. A question was asked about the first-tier tribunal. Yes, parents and pupils will continue to have access to that.

I will answer the point raised by my noble friend Lord Lucas. The nature of the contractual agreement—what is at the heart of it—is that neither side can vary it unilaterally. Our expectation is that many academies will want to move to the new, simplified model funding agreement, which will introduce these provisions on SEN. In the light of those points and the answers that I hope go some way towards responding to the noble Lord, Lord Low, I hope that he will not press his amendments. We will no doubt continue to discuss these matters later.

Amendment 11 agreed.

Amendments 12 to 14 not moved.

Amendment 15

Moved by

[Baroness Howe of Idlicote]

15: Clause 1, page 2, line 16, at end insert—
“( ) At least 25% of the people on the governing body of an Academy will be elected from among the parents of pupils at the school.”

[Baroness Howe of Idlicote]

My Lords, I return to an issue that I raised in Committee: ensuring that parents have proper representation on academies’ governing bodies. I should perhaps again declare my interest as president of the National Governors’ Association, whose views, not unnaturally, I represent.

Governing bodies have considerable responsibilities, as I think we probably all agree, and—this is not always acknowledged—they play a critical part in ensuring that our schools perform well for the children in our community. They are the schools’ accountable bodies, and therefore strong governing bodies are vital to the Secretary of State’s aim to improve school standards and accountability. The NGA is very committed to ensuring that a full range of skills and experience is represented on governing bodies and it actively works to improve the training, knowledge and skills of governors. For example, the NGA’s well respected induction publication, Welcome to Governance, is accompanied by a test and certification process.

NGA members also strongly support the need for governing bodies to represent not just parents but the full range of local stakeholders who also have a great interest in the success of the school. At this point, I should say that I fully support Amendment 17A in this group in the names of the noble Baronesses, Lady Walmsley, Lady Sharp and Lady Garden.

In Committee, I listened to the reluctance of the noble Lord, Lord Hill, to prescribe further the composition of governing bodies for academies. Perhaps understandably, the noble Lord does not want to curtail the freedom of academies, and I support the desire to leave more autonomy to those who know how to run schools without too much interference from central government.

However, in outstanding schools—those which, if they apply, are likely to be fast-tracked to academy status—governance is likely to have been working well and to have provided an engine for a school to reach the point where it is rated as outstanding. Therefore, if the governing bodies of those schools, or fast-tracked academies, choose to contain a reasonable number of parents—I think that in Committee the noble Lord hinted that that was likely to be the case—could they not be commended by the Secretary of State as examples of best practice for all academies to follow?

I am of course pleased that this Government have been championing the role of parents in setting the ethos and direction of schools, but surely the way in which parents can do this most effectively is as members of governing bodies. I hope that the Minister can give a more satisfying answer to this point than he did in Committee. Sadly—I have never quite understood this but the previous Government certainly bear responsibility for it—academies are currently required to have only one elected parent member, although I am pleased to note that many have chosen to have more.

My amendment is modest and not too limiting. It requires only one-quarter of governors to be parents of pupils at a school. That is a long way short of a majority and therefore parents alone could not prevent an academy trust taking an initiative that parent governors did not support. However, it goes a small way to ensuring that parents have some influence in determining the strategy of a school. It therefore cannot be argued that the amendment limits the activity of a school or its trust. Without the amendment or something like it, the Bill will allow a reduction in the level of parental involvement, rather than the increase that the Government have promised.

As it stands, the Bill offers rather more central accountability in place of local accountability at the same time as reducing the number of parents required to be involved in holding the school leadership team to account. Also, election to a governing body is a democratic process, which is an important safeguard. More central accountability might be seen as a move towards more central control by the Secretary of State both in schools converting to academies and in any new academies being set up as free schools.

As I said, I hope that the Government will be able to give a rather more encouraging answer on the re-emergence of this amendment and also that they will be rather more appreciative of the considerable role that governing bodies play in this whole process.

19:15

[Lord Wallace of Saltaire]

My Lords, I remind the House that we are on Report and we need to be careful not to repeat in too much detail arguments which have already been made in Committee. We are intended to deal with new points and those that require further elucidation, not to go over points that we discussed in Committee.

[Baroness Sharp of Guildford]

I rise to speak to Amendment 17A in my name and those of my noble friends Lady Walmsley and Lady Garden. I entirely share the view of the noble Baroness, Lady Howe, in relation to not being too prescriptive. We also very much share her view that school governors should represent the community that the school serves. In that respect, it is very important that parents, in particular, are represented. She said that only one parent was elected. However, in academies, the parent governor is currently appointed, not elected, and that is an important point.

I declare an interest. I am both a governor of a small primary school in Guildford and a member of the corporation—effectively a governor—of Guildford College, so I am actively a governor of schools at the moment.

Amendment 17A is different from the amendment put forward by the noble Baroness, Lady Howe, in three respects. First, rather than prescribe a percentage, we are suggesting specific numbers—a minimum of three and a maximum of seven parents, although obviously the figure will vary according to the size of the governing body, which itself will vary according to the size of the school. There has to be considerable flexibility here. Secondly, we are anxious to see representation from staff, including support staff, as well as from parents. Lastly, we also want to see representation from the local community, and what better way to do that than to have a representative from the local authority? In all three senses, we feel it is important that there should be representation of the community that is served by the school. Therefore, we thoroughly endorse the sentiments put forward by the noble Baroness, Lady Howe, although we have put a slightly different slant on it.

[Lord Hunt of Kings Heath]

My Lords, I rise with some trepidation in case the noble Lord, Lord Wallace, intervenes to say that we are replicating what we discussed in Committee. However, I think it is fair to make the point that, first, as the noble Baroness, Lady Howe, said in moving the amendment, we did not feel that the Minister responded strongly enough. Secondly, we had a good debate yesterday on Report on the subject of primary schools and academies, and I refer to the remarks of the noble Baroness, Lady Perry, on the role of governing bodies. Thinking back over the past 20 or 30 years to what governors used to do in schools compared with what they do now, there is no doubt that their workload and responsibilities have grown considerably, and I suggest that with academy status more corporate responsibilities will fall on the governing body. This is an important matter. It is also very important to have strong parental involvement, including on the governing body. However, the Bill does not provide for the right signals to be given.

I know that the noble Baroness, Lady Howe, blames the previous Government for the existence of that responsibility, and it is well stated that this legislation on governing bodies follows the previous Government’s legislation on academies. However, as the noble Baroness, Lady Williams, pointed out in Committee, there are reasons for that. We were talking then about developing academies essentially to deal with some of the most challenging situations and communities, and there was genuine concern that some schools would not be able to attract enough parent governors. We are talking now about the extension of academies to schools in general. I should think that it is right to give some kind of signal that we expect strong parental involvement. I therefore ask the Minister whether he will give further attention to this matter between now and Third Reading.

[Lord Lucas]

My Lords, this question was asked in Committee but was not answered. Is there an obligation on academies to have elected parent governors, or can they appoint them?

[Lord Puttnam]

My Lords, not for the first time I speak in support of my noble friend Lady Howe. I did not speak on this subject in Committee, but on Second Reading I did make the point that the Government’s handling of governors and governance issues had been “clumsy”. I had hoped that in the intervening weeks I would be able to withdraw that, but, unfortunately, according to the DfE website,

“no decisions have yet been taken on the composition of future academy governing bodies”.

That is a foolish way of putting it for all sorts of reasons.

I have spent the past 12 years visiting almost 400 schools. What have I learnt from that? I have learnt that successful schools are typified by engaged staff with good leadership from heads, engaged parents, and engaged governing bodies. In almost 400 schools I have never come across a school in which the relationship between a successful head and the chair of the governing body has been anything other than excellent. I am sure that it is possible to find one, but I never have. It is a pivotal relationship and I cannot imagine that a successful academy will manage matters differently.

I have a real concern. I think that in years to come, largely as a result of the work of the national college, and possibly the recession, we will have a generation of first-class head teachers. They will tend to be quite young and very professional. They will probably have led three, four or possibly five schools at different times in their careers. As they move on, the only continuity left to the community will be the governing body. If you begin to minimise the role of the governing body in some way and solely optimise the role of the heads—or, as we shall increasingly come to think of them, the CEOs—we could reap a whirlwind. The Government will make a massive mistake if they do not addressing the legitimate expectations of governing bodies.

I would go further. I think that there should be mandatory training for the chairs of governing bodies. I agree absolutely with the noble Baroness, Lady Howe. My own Government, in a dozen years, did nothing like enough in this area. To repeat that mistake in an educational environment in which this relationship will become ever more important as schools need to connect and remain connected to their local communities, will be a grievous error. I fear that academies which believe themselves able to get up and running while ignoring the role of the governing body will fail. There is a danger that they may simply minimise it, or go through something perfunctory such as having one or two people just because they feel they must. Governors are crucial to successful schools, and anyone who thinks otherwise has not visited enough of them.

[Baroness Williams of Crosby]

My Lords, I follow the noble Lord, Lord Puttnam, with one other thought. School governing bodies are related not only to the community responsibility for schools but to the whole fundamental concept of democracy. In many ways the idea of a governing body of a school is a simple, low-level neighbourhood concept of what democracy is about. It is about fulfilling one’s obligations to society and recognising that society has responsibilities that it carries out for all its citizens.

I am worried about reducing the importance and significance of governing bodies. I hope the Government will feel that they can support the idea of strengthening them, albeit with the legacy of the one parent governor in the case of a limited number of academies. In doing so, they would bear out one of the central issues that the coalition has repeatedly said it believes in, which is the decentralisation of power to ordinary people. Many people find their first step towards responsible democracy when they first become a governor of a school, particularly a primary school. There are powerful constitutional as well as educational arguments for recognising that the role of governing bodies is a crucial element of what one might call a mature democracy. I hope the Minister will bear that thought in mind.

[Baroness Perry of Southwark]

I, too, would like to pay very warm tribute to the importance of governing bodies. Exactly as the noble Baroness said, they have had more and more responsibilities thrust on them by legislation in the past 20 years or so. I am, however, nervous of any restriction as to the exact composition of a governing body—as to who should be on it, how many, what proportion, and so on. My experience is based not on the governing body of a school, but I was reflecting as I was listening to the argument that I had for many years the privilege of chairing the council of Roehampton University, previously the Roehampton Institute. We made a positive decision, and I think a democratic decision, that we would advertise the vacancies for governors. We were astonished by the wealth of interest from highly expert people from the community. Of course people will not offer to be on a governing body if they live 50 miles away, so it was very much a local thing. It was really inspiring to find people who popped up from the community of whom we would never have heard saying that they wanted to be interviewed for membership of the governing body.

Much as I agree with the noble Baroness on the importance of parents and governing bodies—I cannot speak too highly of every governing body with which I have been involved—I beg her not to press an amendment that would restrict the composition of governing bodies by dictating it in this way.

[Baroness Morgan of Huyton]

I agree strongly with the noble Baroness, Lady Perry, because my experience is exactly the same. Governing bodies are incredibly important and we all recognise the need for good training and for a wide range of people to be involved. However, as soon as we get into imposing restrictions and saying that we need this or that category of person, as we have done before, we often end up with people who do not want to do it at all. We need to get a range of people who are genuinely and totally committed to the school. In my experience the best governors have often been not the current parents but parents whose children have been through the school and who have decided to maintain their commitment to the school. They have a real feel of what the school has delivered for their children.

Speaking as a current governor I can say that the person who best embodies the community in the school in which I am involved is the local vicar. He does not have a label as anything but he is the most valuable community governor. As it happens it is not a Church of England school, but he absolutely represents the local community, particularly when there have been problems. The local community looks to him, although he would not necessarily fit into one of the categories. Restrictions are not a good route to go down and we should have learnt that from the past.

[Lord Greaves]

My Lords, I do not think that the amendments call for restrictions. They are the opposite; they say that parents are a special group of people who should therefore be given places as of right. That does not restrict anyone else in any way. It is absolutely true that some of the best governors are people who have become interested in and involved in the school over a period. Indeed, some of the best governors are people who may now be grandparents of children in the school who first got involved as parents and, when their children had gone through the school and they were not qualified to be parent governors any more, it was natural for the school to find a way to get them back on the governing body as an appointee, a co-optee, or whatever. That is absolutely correct, and no one is arguing against it.

Schools really need people who are prepared to give up considerable time, energy and commitment to the school, whatever their present position in the community. The purpose behind the amendments is that parents of children in the school at the time are a special group, for obvious reasons, and that their presence on the governing body in a reasonable proportion ought to be set out and entrenched. That in no way contravenes anything that the noble Baronesses, Lady Perry and Lady Morgan, said about the importance of getting other people involved, or of parents continuing after they have been parents of children at the school.

19:30

[Lord Hill of Oareford]

My Lords, I start by saying to the noble Baroness, Lady Howe, that I agree with her that—as everyone, including the noble Lord, Lord Puttnam, said—governors are key. I agree with her strongly on the vital role that governors play in schools and, in particular, the important contribution that parent governors have to make. We have spoken before outside the House, and I am keen to meet her and the NGA. I apologise that I have not been able to do so so far, because I have spent most of my waking hours in the House. I should like to talk to her and the organisation about how one can attract more parent governors and whether there are current obstacles to that—restrictions placed on them, and so on. I hope that she will accept my apology if she feels that I have not sufficiently stressed the importance of governors, and of parent governors in particular, because I feel that very strongly.

There is no difference anywhere in this House about the importance of governors and parent governors. Where there is a difference of opinion, I find myself agreeing with the noble Baroness, Lady Morgan of Huyton. The best way to go is to be less prescriptive and to trust people to get the right mix of people for a particular school. Should one set out from the beginning that there should be a certain proportion of different kinds of person whom one has to have, whether or not they are the best people for the job? As noble Lords might expect, I incline to the view of expressing the strongest possible endorsement of the importance of the role of governors and the wish to see parent governors involved, but leaving it to individual governing bodies and trusts to decide in their particular circumstances what is the best mix of people. Like many noble Lords, I have been a governor of a couple of schools for many years, and I have seen that having a broad mix of people tends to make for good governance decisions.

Where I take issue and am keen to resist, and where I know that I will not satisfy the noble Baroness, Lady Howe, and other noble Lords, including the noble Lord, Lord Puttnam—I apologise if he thinks that I am clumsy—is the degree of prescription in the amendment. As has often been the case since I have been in my job, I have been happy to praise the former Government for things that they did right. One thing that they did right was to come up with an approach to governance for academies which was sensible and has stood the test of time. It still applies in the new circumstances in which we find ourselves.

The new free schools are a good example of parental involvement, and one would imagine that parent governors will be a high proportion of governors—so high that some in this House have argued that there will be too many parents involved in setting up a new school. In some ways, that illustrates the point: what is the right number?

I certainly stick to the point that there are many examples where academies have chosen many parent governors to sit on the governing body. We hope that that will continue. However, on a point of principle—in all areas, and where it makes sense; we think that this is an example—the Government do not want to go down the prescriptive route. We want to stick with the approach to the governing bodies of academies of the previous Government.

We touched on the specific question raised by the noble Lord, Lord Lucas, before. The answer to his question is that the arrangements for the election of a parent governor or parent governors of an academy will be set out in the articles of association. The election of parent governors must be by the parents of pupils attending the academy.

[Baroness Sharp of Guildford]

Do the Government intend to move from parent governors being appointed to there being elections for parent governors? That would be a great step forward.

[Lord Hill of Oareford]

There will certainly be election. I must apologise, but I am not currently 100 per cent sure whether there is provision for election or not, and I will need to follow that up, but there will be election.

I was headed toward saying to the noble Baroness, Lady Howe, that I am sorry not to be able to be more helpful. I understand her point. I hope that she will spare the time to meet me with the NGA to talk about the matter more generally but, at this juncture, I ask her most respectfully to withdraw her amendment.

[Baroness Howe of Idlicote]

My Lords, I very much thank the Minister for the consideration that he has given. Of course, I am hardly completely satisfied, as he will understand. The conversation that followed the initial moving of the amendment expressed the view that we all share about the importance of governing bodies. I suspect that many other people in this room have been governors at some stage of their life. My experience goes back many years, to when there was not a great deal to be done other than consider meals and milk. I particularly thank the noble Lord, Lord Puttnam, for his contribution, because he put it in the wider community sense, and the noble Baroness, Lady Williams, for her point about the democratic process: how, so often, becoming a governor of a local school sparks off the base of the big society—as the Conservative side of the coalition was keen to put across to us all.

I will leave it at that. I thank all noble Lords, because quite a number spoke. I will withdraw my amendment and I certainly hope to have a meeting with the Minister and members of the NGA.

Amendment 15 withdrawn.

Consideration on Report adjourned until not before 8.40 pm.

NHS: Pain Management Services

Wednesday 7th July 2010 Lords Chamber

Question for Short Debate

19:40

Tabled by

[Lord Luce]

To ask Her Majesty’s Government what action they will take to provide access to multi-disciplinary pain management services in the National Health Service for those experiencing chronic pain.

[Lord Luce]

My Lords, I am most grateful to the Minister for replying to this debate and to all noble Lords who are taking part in it. Why do I raise the subject? For over 40 years, I have suffered from chronic back pain due to musculoskeletal problems, but I am fortunate in that I have managed to live a full life with various public responsibilities due almost entirely to prompt, effective and dedicated support from specialists in the private sector. Very few people have access to it. Some 7.8 million people in this country suffer from chronic, as opposed to acute, pain, and my plea today is that the Government ensure that every single one of them has access through the National Health Service to multidisciplinary rehabilitation to help them to stay in their jobs and to live a life of at least tolerable quality. Given this support, I believe we can learn to manage our own pain.

The facts are horrific. One in seven individuals suffers from chronic pain, of which musculoskeletal pain or osteoarthritis is the commonest cause, although it includes cancer pain. It can be deeply damaging to the quality of life, causing sleeplessness and depression while interfering with normal physical and social life. Milton wrote,

“… pain is perfet miserie, the worst

Of evils, and excessive, overturns

All patience”.

Moreover, it has an adverse effect on the economy of the country as well as on the individual. Chronic pain takes up the equivalent of 4.6 million GP appointments, costing approximately £70 million per annum. In 2000, it was calculated that the total cost of back pain was just over £12 billion, and today 119 million working days are lost per annum because of back pain. A recent pain survey in Europe showed that 25 per cent of people in chronic pain had lost their jobs and that a considerable proportion of them never return to work. In the present economic climate, it is worth stressing that an effective preventive service could save overall costs in the long term.

A turning point came with the report on pain by the previous Chief Medical Officer, Sir Liam Donaldson, in 2008. He stressed that pain affects all age groups, not just the elderly. Worryingly, a quarter of school-age children have reported pain and 8 per cent suffer from chronic pain. Sixty-eight per cent of pain clinics in the UK do not see children, according to the British Pain Society. The most affected are those at work in their 40s and 50s. Sir Liam highlights the fact that only 14 per cent of those suffering from chronic pain have seen a pain specialist, normally an anaesthetist, and that the infrastructure is inadequate, unco-ordinated and unevenly resourced, which results in a variable quality of service provision—in other words, a postcode lottery. Generally, interest from primary care trusts and strategic health authorities in establishing better pain services seems to be low.

The report’s conclusion is clear; pain needs to be recognised as a disease in its own right, and a pain score should become one of five vital signs to be monitored routinely in hospitals and elsewhere. Above all, it advocates that a multidisciplinary approach should be vital in the prevention, assessment and management of pain and that there should be a national network of rapid-access pain clinics providing early assessment and treatment, as early intervention is critical for improving the long-term outcome. The report adds that all health professionals dealing with patients should be trained in chronic pain and that the assessment of pain should be included in the quality and outcomes framework in primary care. Other recommendations include the creation of a model pain service of pathways of care and the maintenance of a proper database.

I am delighted to say that, to help us in all this, is the Chronic Pain Policy Coalition, under the chairmanship of Dr Beverly Collett, who runs a successful pain management unit in Leicester. It also supports an all-party parliamentary group—Anne Begg MP was re-elected today as its chairman—that has a growing membership, in this new Parliament, of more than 20 parliamentarians. We are now most anxious to see the recommendations of the former Chief Medical Officer implemented.

For my part, I have witnessed some successful multidisciplinary operations in the NHS. In my own county, I have visited the West Sussex Primary Care Trust and seen its chronic pain management services in Bognor, where it aims to achieve integrated musculoskeletal, rheumatology and pain management services. Key to this is its provision of tools for patient self-management with the help of hydrotherapy, muscle-pain clinics, physiotherapy, fit-for-work schemes and clinical psychology. I was particularly impressed by my visit to the Pain Management Centre, which is led by Dr Baranowski at the National Hospital for Neurology and Neurosurgery in London. It has had success in treating patients on a multidisciplinary basis.

Another centre of excellence is the Pain Management and Neuromodulation Centre at Guy’s and St Thomas's in London under the leadership of Dr al-Kaisy, whose excellent residential unit gives prospects of a better life for many patients who had been in despair from their suffering. I have also seen the support given to cancer patients suffering longer-term pain at the Palliative Medicine and Pain Unit of the Royal Marsden Hospital, which is led by Dr Williams. The unit has a multidisciplinary strategy that gives options ranging from medication, physiotherapy and psychology to interventional support. It is good that pioneering work, principally on the spinal cord and the brain, is being carried out, mainly in some university research departments. I hope that it may eventually lead to improved methods of treatment.

There is therefore clear evidence to show that, with the right expert support, people can be encouraged to manage their own pain, improve the quality of their lives, and in many cases stay in employment or, indeed, return to work. The provision of access to multidisciplinary pain clinics would in itself be a good investment for the country. This is best highlighted by Dame Carol Black's 2007 review of the health of Britain's working-age population. She stressed the business case for employers' investment in employees’ health. Much can be done through preventive and remedial measures with more flexible working patterns and wider provision of support and therapeutic sessions. A key recommendation was to change the nature of the GP’s sick note so that the GP focuses on what can be done to encourage the patient to go back to work rather than stay at home.

I should highlight the fact that Scotland has set something of a lead in managing chronic pain. In 2007, the Scottish Health Minister recognised pain as a long-term condition in its own right, and he has appointed a pain tsar to co-ordinate all pain service development. Last summer, I was briefed by the pain management service in the Shetlands, which caters for a population of 20,000. The Welsh Assembly Government have recognised pain management as one of five areas for improvement by providing services nearer to people's homes.

I am glad to note that the National Institute for Health and Clinical Excellence has issued guidelines on the early management of persistent low-back pain. I understand that the new National Quality Board is considering where chronic pain fits into the level of clinical priorities for quality improvement in healthcare.

I hope that the Minister will be prepared to meet me and some interested parliamentary colleagues before long to discuss the way ahead. The previous Government can take credit for laying the foundations, and I look to this new coalition Government to make a determined effort to establish multidisciplinary rehabilitation pain management services that are accessible to all those suffering from chronic pain in England. My experience tells me that if they do that, they will give hope to many people of all ages in this country.

19:49

[Baroness Masham of Ilton]

My Lords, I thank my noble friend Lord Luce for this important short debate on chronic pain and congratulate him on his ongoing campaign to make conditions better for people with continuing chronic pain. Some years ago, when I was sitting next to my noble friend at lunch, he had such excruciating pain in his back that he had to go out and lie on a bench, and an ambulance was called. I have always had the greatest admiration for his tenacity in holding down an important position while enduring such chronic pain. It is good to see him still bringing this matter up. Who knows better what pain means? He is an expert and I hope that the Government will listen.

I know excruciating pain. I broke my back and fractured many ribs in an accident many years ago. When I arrived at the spinal unit at Stoke Mandeville Hospital I was not given any painkillers for fear of addiction. In those days, that was the policy because we were turned only three-hourly to prevent pressure sores. Cramp used to set in and I understand the expression “blood, sweat and tears”.

When a doctor told me that the pain should ease off in three weeks, that was the light at the end of a very dark tunnel. It is important that the psychological implications of chronic pain are understood—for example, how it can cause depression, break up partnerships or loss of jobs. Pain can eat into people’s lives. In 2008, there was hope in the Chief Medical Officer’s annual report, which wanted,

“to widen access to high-quality pain services”.

What action has been taken in the past two years by the National Quality Board on clinical priorities for the NHS? What are the Government’s views on this subject?

The public need education in what to expect from analgesics and in how they can help themselves to cope with chronic pain. Postgraduate training is needed for the safe and appropriate prescribing of analgesics and the use of other therapies. Often, GPs prescribe pain-killing drugs to patients who are not reviewed and end up becoming dependent and addicted. About 8 million people of all ages suffer from chronic pain. Only about 14 per cent of them have access to any pain specialists. Long-term pain can have a devastating effect on the lives of sufferers and families. Forty nine per cent suffer from depression; 25 per cent lose their jobs; and 16 per cent feel suicidal.

Pain can be very complex. I am president of the Spinal Injuries Association. Some of our members have root pain or phantom pain, which is not well understood. Some people turn to alcohol, which may help but can damage their kidneys. Something has to be done to improve the situation. There is much need for research into pain and for multidisciplinary pain management services across the NHS which encompass doctors, physios, nurses, occupational therapists, psychologists and expert patients who are all trained in pain care. There needs to be co-operation and co-ordination, and not fragmentation. I wait in anticipation for the Minister’s reply.

19:54

[Baroness Gardner of Parkes]

My Lords, pain management is very important and I am grateful to the noble Lord, Lord Luce, for introducing this debate. I should declare an interest in that I have a daughter who has had multiple sclerosis for almost 30 years. To a degree, she has been fortunate in that she has not suffered pain. But many sufferers of multiple sclerosis suffer severe pain. Some of them have pain in their mouths—trigeminal neuralgia. In oral dental training, the trigeminal nerve is a very important nerve in the face. It is the one that we have all heard about and we all hope that people will never get trigeminal neuralgia as it is considered to be the most horrendous pain that exists and is very difficult to deal with. Although various things can be done, sometimes that involves surgery, and for someone with multiple sclerosis that is very difficult. So pain is a major issue.

Many years ago I went to the Eastman Dental Hospital to see Professor Harris. When I got there, they said, “Have you come for the pain control clinic?”. I said “No”. I had never heard of the clinic. But it was interesting that Professor Harris was doing tremendous research at the Eastman Dental Institute into pain control. He must have retired some time ago, but this work is being continued.

Someone sent me a valuable tome on trigeminal neuralgia, which I kept for years. I occasionally glanced at it, but I never really read it. I offered it to the Lords Library but was told that it was far too specialised. I eventually sent it to one of the dental training schools because it was too important to be thrown out.

Pain affects many people. The noble Lord, Lord Luce, talked about acute pain, as well as chronic pain, which is what we are dealing with now. Chronic pain can be severe pain, which is the most worrying aspect. People can manage to put up with a little unpleasantness from time to time, but severe, constant pain is terrible to endure. Apart from anything else, it is demoralising and exhausting. Pain can be a valuable warning that something is wrong, but I agree with the noble Lord, Lord Luce, that pain should be classified as a disease in its own right.

In 2006, I fell off one of those old buses, which I foolishly tried to hop on. It was at the lights and, unfortunately, I did not make it. I was tossed in the air and I broke one of my vertebrae, but I did not discover that for some time, although it was a little painful. By the time I was diagnosed it was too late to do anything about it surgically, but I was put on hydrotherapy, which was fantastic and dealt with the problem.

Another important point is that, often, the specialist nurses and therapists who work with these individuals pick up the pain issue and are able to refer people to the right place for pain management control.

Unfortunately, my time is up and I cannot say any more. This is a most important debate and I thank the noble Lord again.

19:57

[Baroness Greengross]

My Lords, I, too, thank the noble Lord, Lord Luce, for introducing this important debate. Pain can last for many years and some people have life-long symptoms. Sometimes it starts after a specific injury, but it is not always clear why people suffer in this way. As we have heard, some people suffer with continuing low back pain, pain related to joint inflammation or pain related to a nerve injury. Pain can follow an operation or an amputation, or even after what seems to be a not- very-serious infection, such as shingles.

We know that the effects of chronic pain can be disastrous and many people will need support in managing their symptoms. While specialist services are available in the community and in hospitals, I am aware that many people spend far too long without appropriate treatment. We are talking about large numbers of people and the accompanying huge costs spent in welfare benefits when people have to leave work and stop being productive in the community. We also know that death by suicide in chronic pain patients is double that of the general population and that severe chronic pain is associated with an increased 10-year mortality.

Much remains to be done with chronic pain management generally. I am particularly concerned about the status of older people in this regard. The recent National Audit Office health inequalities audit stated that much progress remained to be made on the issue, which would not be surprising as older people usually experience discrimination in the form of health inequalities, but also in poorer chronic pain management targets. Given the current austerity programme that the public sector is facing and the even greater importance of value for money, I hope that the Minister can assure the House that this aspect will be considered in terms of where any cuts will fall—bearing in mind that while we have been reassured that the NHS budget is ring-fenced, in fact that promise includes an existing £20 billion cut in expenditure.

In a survey, the BMA found that 43 per cent of those trusts which responded to it stated that there was a freeze on recruiting doctors and nurses and that many treatments, including varicose vein operations and blood tests, were being rationed. Set against this background, it is hard to see how the parlous state of chronic pain management services will be speedily remedied.

Finally, evidence strongly suggests that a human rights approach could have a practical role to play in this new era of austerity, breathing life into the Government’s promise to protect the most vulnerable and enabling us to interpret large sums into consequences for human beings. Public bodies have a duty to protect people who are suffering from inhuman and degrading treatment, and prolonged pain is in fact a category that would come under that heading. In their review of the Human Rights Act, the Government have said that they will keep these obligations intact, so an approach involving human rights could help public sector staff to remain aware of the huge human costs involved in chronic pain management. For example, the Mersey Care Trust has pioneered the use of human rights to give people with mental health problems and learning disabilities a meaningful role in the organisation, and there have been positive results. Service users and carers are involved in staff appointments, and this has led to a greater emphasis on finding staff with empathy and understanding as well as good technical skills. Perhaps such an approach to joined-up chronic pain management could reap enormous dividends.

20:01

[Baroness Pitkeathley]

My Lords, like other noble Lords, I want to confine my remarks to my own experience of pain and pain relief and to speak solely as a patient. Unlike the noble Lord, Lord Luce—I thank him for securing this debate—my experience is more of acute rather than chronic pain, and I am happy to say that I am now pain free. However, the principles I want to set out apply equally to both. While I endorse absolutely the view that co-ordination is all-important and a multi-disciplinary approach entirely the right one, when it comes to pain relief, I believe that these must be supplemented by the very best of communication.

This communication must have two aspects, the first of which is communication between professionals—the doctors and nurses, of course, but also the professionals ancillary to medicine such as the physiotherapists, radiographers and dieticians. If the medication for pain relief means that my feet are too numb to enable me to do the walking practice that the physiotherapist has recommended, what help is that to my recovery? If I can take absolutely nothing by mouth, and everything has to go by a Hickman line, the staff administering pain relief have to be very aware of it. I must put in a plea here for the extra services so often provided by volunteers in hospitals which all contribute to patient recovery but are not necessarily prescribed. I remember how, at a time of the most awful physical pain, the most relief I experienced did not come from drugs but from a nice young man who gave me a foot massage with scented oils.

Communication between departments is also vital. When you come out of intensive care, especially when coming back on to a ward, as I did four times in one hospital, there is nothing more frustrating than to lie there in pain with no one able to give you relief because your notes are caught up somewhere in the system. This applies particularly at night. Many patients still experience being in severe distress, but because far fewer doctors are available during those hours, they have to wait for someone—and at that point you feel that anyone would do—to administer some pain relief. So communication between professionals and between departments is vital, but in my view, no communication is more vital than that between the person administering the pain relief and the patient.

It is fine for an anaesthetist to say that an epidural is best for severe abdominal surgery, but if the epidural means that incontinence is a result, many a patient would prefer to endure the pain. Similarly, if the result of self-administered measured doses of morphine—in theory an excellent idea—is severe nausea to the point of exhaustion, surely the patient should be allowed to decide on other forms of relief. In one stay in hospital that lasted for about seven months, my worst memories are not about the pain, awful though it often was, but about the times when my wishes regarding pain control were ignored. However, I am happy to record that it is to the great credit of the NHS that those occasions were mercifully few. The best memories always centre around the way that caring people were prepared to consider me as an individual, and even to depart slightly from the rules; to discuss with me how drugs could be administered when I was unable to swallow anything for five months; and to maintain my dignity when those drugs had to be administered in most undignified ways. I recall also people like the young Nigerian charge nurse who would himself shed tears of sympathy when trying to find somewhere to inject me that did not cause excruciating pain to a body already like a pin cushion from repeated injections. As in many things, nothing can substitute for good communication when it comes to pain relief, either for chronic or acute pain.

I hope that the Minister will be able to endorse the importance of communication when any new policies are being developed.

20:06

[Baroness Emerton]

My Lords, I wish to add my thanks to my noble friend Lord Luce for initiating this short debate, following up his previous attempts to improve the multi-disciplinary approach to managing chronic pain. I declare an interest as a retired nurse and fully support multi-professional involvement. I certainly agree with the noble Baroness, Lady Pitkeathley, about the importance of care, compassion and communication as vital accompaniments. I also support my noble friend Lord Luce in urging the introduction of the fifth vital sign. It is extremely important that that is implemented.

There also appears to be a hold-up in extending the prescribing role of nurse consultants to patients suffering from chronic pain, although they are able to prescribe opiates to those suffering from acute pain or if they hold the role as a palliative care nurse. However, in a chronic pain clinic they have to refer the patient back to the GP. I understand that this causes great frustration to the patient, the GP and the nurse, and is wasteful of resources. I urge the Minister to look into this, please, to see whether it can be untangled.

I wish also to draw the Minister’s attention to an aspect of chronic pain that is preventable and very cost-effective. Reference has already been made to Dame Carol Black’s 2008 report, Working for a Healthier Tomorrow, which found that early intervention enables staff to return to work quickly, particularly where illness has the potential to become chronic and long-lasting, such as in the musculoskeletal disorders. Her report found that for employees with lower back pain, early intervention sees them return to work up to five weeks earlier than under normal care and reduces the recurrence of back pain in the following year by up to 40 per cent.

The Secretary for State for Health has made much of the need for an NHS that is focused on prevention and wider public health. Taking measures to safeguard nurses from back pain could be a tangible commitment to this. According to the Boorman review of November 2009, NHS Health and Wellbeing, which was acknowledged by the former Government, sickness among NHS staff in England currently accounts for 10.7 million lost work days at a cost of £1.7 billion. Some 30 per cent of the staff of the NHS are nurses. A national audit into clinical back pain management found that nurses and nurse support staff were more frequently absent than any other healthcare professionals with back pain caused by the level of manual handling in their jobs. It is not clear what the exact cost of back pain related nurse illness is to the NHS, but as nurses comprise the largest part of the workforce, it must make a significant contribution to the costs highlighted by Boorman. In addition, professional compensation awards can be significant. In recent years, awards of £800,000 and £400,000 have been made for work-related injuries. Early intervention to prevent nurse back pain related illness could help prevent a genuine risk to patient safety.

In the interests of ensuring patient safety, saving large sums of money as a result of preventive action and producing a healthier workforce, will the Minister add to the requests of other noble Lords my request for government action to encourage regular risk assessments, training in updated manual handling procedures and the supply of adequate equipment, especially in the community services, as well as a recognition of the need for early intervention in signs of lower back pain in nurses, support workers and other healthcare professionals? There is a saying that prevention is better than cure. Focus on prevention in this field would be of great benefit to patients, staff, management and the economy generally.

20:10

[Baroness Morris of Bolton]

My Lords, the noble Baroness, Lady Masham, has grown even more in my estimation. At 17, I fractured my spine—and if I had not had regular and large doses of morphine I do not know how I would have coped.

Just over four years ago, for reasons known only to itself, my immune system started to attack my body and I experienced the most excruciating pain in my feet, which spread to my hands, my wrists and then just about every other joint in my body. I could walk only if I wore the clumpiest of trainers, and I will always be grateful to your Lordships for allowing such glamorous footwear to be worn in the Chamber. At times the pain I experienced was so bad that my husband would walk downstairs in the morning to find me with my hands inside the deep freeze, so desperate was I to find relief.

I am not alone in my discomfort, and when I recount my own experiences I know I speak on behalf of around 600,000 people in the UK who suffer from one form or another of inflammatory arthritis. Some 380,000 of these have rheumatoid arthritis, which affects three times more women than men. Therefore, I am most grateful to the noble Lord, Lord Luce, for securing this debate.

According to the Arthritis and Musculoskeletal Alliance, musculoskeletal disorders are the second biggest cause of work-limiting health problems and sickness absence in the UK, with an estimated cost to society of some £7 billion per annum—and that is at 2007 prices.

There is a high divorce rate among women with this disease, probably because there are times when we cannot lift a kettle, cut a loaf of bread, do the washing up or iron a shirt. There are some days when you just cannot do anything. We need understanding and supportive families, and I am blessed with a great family.

I now inject drugs which keep most of my symptoms at manageable levels. I am lucky, if that is the right word to use, that I contracted this horrible disease at a time when medical research is making such tremendous breakthroughs. It has been my experience and, as research shows, the experience of most people, that services are most effective when they are delivered through a well-established multi-disciplinary team. The care I get from the rheumatology department at Bolton, which I will probably receive for the rest of my life, is second to none. As well as having had my drug regime sorted out, I have had physiotherapy, occupational therapy, Pilates lessons, warm hand waxes, podiatry and, best of all, acupuncture, which simply took the pain away and left me feeling beautifully relaxed. If I had wanted it, I could have had counselling or hydrotherapy. You name it; there was something for every need.

The acupuncture was so popular that it was difficult to book sessions, which were available only during the working week. I ask my noble friend the Minister whether there are plans to train more practitioners in acupuncture, and might we ever see weekend clinics for all forms of pain relief? I know that Bolton has been running some sessions to train patients in the self-administration of acupuncture, the results of which would be interesting to look at.

I have had excellent access to care in the NHS but, as the noble Lord, Lord Luce, said, this is unevenly resourced. For anyone suffering from chronic pain it is vital, not only for the well-being of the individual but for their families and society as a whole, that they get quick and consistent access to drugs and pain relief, delivered over a range of disciplines, so that they can lead as normal and economic a life as possible.

20:09

[Lord Walton of Detchant]

My Lords, I, too, am grateful to my noble friend Lord Luce for initiating this crucial debate because pain is one of the most distressing of human experiences. I shall concentrate on the importance of accurate diagnosis of the cause of pain before an appropriate programme of treatment can be initiated.

Everyone recognises chronic pain in osteoarthritis and multiple arthritis and in patients with cancer and terminal illness, but a number of chronic pains are recurrent and not continuous. The noble Baroness, Lady Gardner, referred to trigeminal neuralgia, which is a momentary acute lancinating pain in the face that may be precipitated by touching the face, by washing, by cold winds, by chewing. It is momentary and lancinating, and is a very severe and distressing pain that must be distinguished from the chronic low-grade continuous pain in the upper jaw that is not uncommon in middle-aged people and that has been shown to be a psychogenic regional pain that not infrequently responds to anti-depressive agents once dental causes have been excluded.

There is another form of pain called cluster headache in which people, every few months, may have every night—often at the same time, such as two in the morning—a hugely intense pain around the eye and in the face lasting for about half an hour, or a full hour, which wakes them from sleep time after time. It disappears after two or three months and then comes back again two or three months later. It is not migraine, but it, too, is a special headache syndrome that remarkably has been shown to respond to a drug called indomethacin. Accurate diagnosis is crucial, which is why the education of medical students, of young post-graduate doctors and of other healthcare professionals in the recognition of the different pain syndromes is so important.

Several speakers have stressed the importance of multi-disciplinary management. I, too, stress that because, in my experience, some people with chronic low-back pain have become so anxious and tense because of it that it builds up a kind of vicious circle in which the pain is accentuated by anxiety and tension. This can sometimes be helped enormously by the prescription of anxiolytic drugs and anti-depressives, alongside analgesics. That is why the multidisciplinary approach is crucial.

There are, of course, many physical methods of treating pain, including manipulation, injections, occasionally acupuncture and cutaneous nerve stimulation. There is a huge number: far too many to mention in this setting. However, at the same time, the recognition of the nature of the pain is crucial.

Another curious pain, proctalgia fugax, is an agonising pain in the anus that lasts for five to 10 minutes. It may recur completely out of the blue and for no reason at all. I have experienced it and so have two of my daughters. It is totally benign; it is alarming but of no serious significance. Its recognition is important.

I simply stress, as have others, the important work of the Chronic Pain Policy Coalition. It has highlighted five areas of action which I hope will be accepted in principle by the Government. I also hope that the vital report by the previous Chief Medical Officer, which contained so much invaluable material, will be accepted by the Government as a principle and will not only persuade local health authorities of all kinds—primary care trusts and so on—to embark on a programme of improving the establishment of pain clinics across the country, but will be used by educational bodies for the education of healthcare professionals.

20:18

[Lord Alderdice]

My Lords, the noble Lord, Lord Luce, who introduced the debate, and an astonishing number of other noble Lords have described how their own personal experiences have given them a profound insight into the importance of the dread subject of chronic serious pain. They have also shown an understanding and deep appreciation of the possibilities of treatment of this disorder.

In the short time available to me, I wish to stress three points. The first is the biopsychosocial aspect of pain. I hope that my noble friend will help the department to understand, as the noble Lord, Lord Walton of Detchant, pointed out—so clearly as he always does—the hugely important physical and biological aspect of much pain, and as other noble Lords have pointed out, its psychological aspects, particularly the noble Baroness, Lady Masham of Ilton. Others have pointed out the social aspects, as did the noble Baroness, Lady Morris of Bolton. Pain of this kind is sometimes largely physical in its origins, but, at other times, the psychological and the social components play a very important role as well. They do so not only in its origin but also in its treatment and management. All those elements are extremely important. There is a tendency sometimes to think that the biological side of things is only about pain relief in the form of medication. There are other kinds of physical approach to the treatment of pain. My first point then is the need to understand the biopsychosocial nature of the disorder and its treatment.

My second point is the need to pay attention to the needs and wishes of the patient, as the noble Baroness, Lady Pitkeathley, pointed out. In principle, at least, that is not so difficult when the patient’s cognitive function is intact and they are able to communicate. Many patients suffer from pain, but their cognitive function is impaired and they may be suffering from dementia. Many elderly people suffering from dementia do not have their pain understood and attended to because they are not able to communicate it clearly. That is also true at the other end of the age scale. Many children are unable to communicate their pain clearly because they cannot even understand what is happening to them. Their pain is not properly dealt with and their misbehaviour is sometimes treated inappropriately. Likewise, the pain of those with psychiatric disorders is sometimes simply dismissed—“Oh, it is all in their head”—and is not properly dealt with. Those with learning disabilities also have great difficulty in communicating the nature of their pain. As the noble Baroness said, attending to the needs and wishes of the patient is crucial, but it is not always easy, and I trust that my noble friend the Minister will be able to assure us that it is appreciated that attending to the needs and wishes of patients is more complex than simply listening to them.

My third point is that, although it is extremely important to have expert pain clinics, only a minority of patients will ever be able to get to them. What can be very helpful to doctors, nurses and other clinicians who deal with patients with pain is to be able to contact such clinics and ask over the telephone directly for advice on how they might handle them. We shall never be able to train all our practitioners, GPs, community nurses and so on in the most up-to-date and complex ways of dealing with these patients, but we can make sure that they have access to those who are up to date. When I was a psychiatrist, it was possible to contact other clinicians who understood how to deal with such things and to receive advice from them and then make it available to my patients. I trust that my noble friend will be able to reassure us that practitioners will be able and encouraged to make such contact, and that it will be seen not as a failure of their professional ability but as a fulfilment of it if they do so.

20:22

[Lord Tunnicliffe]

I congratulate the noble Lord, Lord Luce, on initiating tonight’s debate. When preparing for this debate, I was shocked to learn of the suffering of so many of my fellow citizens, and commend the noble Lord, Lord Luce, on his determination that this issue should be given the priority that it deserves in healthcare planning. The account of his personal experience and that of other noble Lords serves to illustrate the need for a national and co-ordinated approach.

I accept the argument that chronic pain requires a multidisciplinary approach and rapid-access pain clinics to provide early intervention, as advocated by both the Chief Medical Officer in his report of 2008 and NICE in its May 2009 guidelines on the treatment of chronic low back pain.

In May last year, my noble friend Lady Thornton said in answer to a Question from the noble Lord, Lord Luce:

“My Lords, we welcome the recommendations on the management of chronic pain in the Chief Medical Officer’s 2008 annual report. Many of the recommendations are already in line with existing guidance and practice in the NHS. We will consider what further action may be needed in the context of advice from the National Quality Board on clinical priorities for the NHS”.—[Official Report, 6/5/09; col. 543.]

The first question that I therefore need to ask the Minister is whether the CMO's report was considered by the National Quality Board, and if so what its advice was and whether it has been acted on.

Chronic pain affects 7.8 million people; 25 per cent of them lose their jobs or have to leave them; and £3.8 billion a year is spent on incapacity benefit payments to those diagnosed with chronic pain. The noble Lord, Lord Luce, made a very valid point when he said that it is more cost-effective to deal with chronic pain through investment in teams at PCT level than to leave treatment and support to chance and the patchwork that exists, at least in some places, at the moment.

My second question, therefore, is whether the Government will address this kind of investment in their reconfiguration of the National Health Service. Further, I hope that the Minister will agree to meet the noble Lord, Lord Luce, and the Chronic Pain Policy Coalition to discuss their legitimate concern that the impetus to deliver a national and co-ordinated approach will be lost in the change in government and the proposals of the coalition to devolve commissioning to GPs.

It is no longer acceptable in the modern world to tell people to grin and bear it when it comes to chronic pain. For many, medical and pharmaceutical advances mean that the remedies are available. Political will on the part of the Government and the management of the NHS is required to deliver effective solutions.

20:26

[The Parliamentary Under-Secretary of State, Department of Health (Earl Howe)]

My Lords, this has been an excellent debate. I begin by expressing my gratitude to the noble Lord, Lord Luce, for calling it and congratulating him on the eloquent way in which he has introduced a topic which I know is close to his heart.

Chronic pain can be a devastating condition, as many of your Lordships have testified. It affects a large proportion of the population, especially those of advancing years. The noble Lord has already quoted a number of relevant statistics; let me just add another. Data from the Health Survey for England suggested that more than half of the total impact of disease on quality of life is due to pain.

There are examples of really effective, joined-up, multidisciplinary pain services providing support to patients as and when they need it. As the noble Baroness, Lady Pitkeathley, said, that is how it should be. But, all too often, patients do not get the support and the treatment that they need.

In his 2008 annual report, the then Chief Medical Officer, Sir Liam Donaldson, described how the system was failing to give sufficient priority to chronic pain. A key response from the previous Government was to agree funding for a national pain audit. We are maintaining support for this initiative, which is led by the British Pain Society in collaboration with Dr Foster. More than 200 pain clinics are already signed up to provide data. The work is being piloted and data collection will begin later this year. We are expecting a report in the early part of 2012. The audit will not only assess the organisation of local services—location, staffing and equipment—but also assess the quality of patient care across NHS providers by measuring activities and outcomes.

What can the Government do? Our vision for the NHS is for a transfer of power away from the centre down to the people who really understand what is needed: to patients, GPs and other front-line health professionals. It is only by doing that that we will fashion a health service that is truly patient-centred. This is why we intend to devolve budgets to GP commissioners, working in small local consortia. They are best placed to understand their patients’ needs and to prioritise and commission appropriate services, including multidisciplinary pain management services.

On average, someone with chronic pain will have direct contact with a health professional for only around three hours a year. The rest of the time they care for themselves. Patients therefore need to be informed. By our educating people about their condition and ensuring that they have access to support from others in a similar situation, people’s health can be significantly improved. This also helps to reduce the number of GP visits and prevent unnecessary hospital admissions as well as reducing the length of any hospital stays.

I recognise that some patients cannot take decisions for themselves or express themselves, among whom are children, as my noble friend Lord Alderdice rightly pointed out. The detection of children's pain can, however, be improved by strategies to facilitate their expression of pain in ways that are appropriate to their cognitive development and that can be understood by the adults caring for them. So there is work going on in this area.

Good management of chronic pain takes account of the whole person. People agree goals and actions to be taken in a personalised care plan. This allows people to make choices about the care that they receive. The issue of choice was rightly mentioned by a number of noble Lords. It puts people at the centre of any decisions about their care. As my right honourable friend the Secretary of State put it recently,

“no decision is made about me, without me”.

Information from care plans can also help commissioners consider how to use funds most efficiently to support people to self care and identify services that are successfully meeting patients’ needs and expectations. It also enables them to recognise gaps where there is unmet need. This is an important way for the patient voice to have direct influence over the design and commissioning of services in a particular locality.

Of course, devolving decision-making in this way does not mean that the Government are devoid of responsibility. There are a number of ways in which the Government and other organisations can support patients and front-line staff, ensuring that funding is spent on appropriate and effective services. First, we can ensure that clinicians and commissioners have up-to-date, evidence-based clinical guidance. The National Institute for Health and Clinical Excellence plays a key role here. As the noble Lord, Lord Luce, mentioned, NICE issued a clinical guideline last year on lower back pain and has more recently published a guideline on neuropathic pain. Over time, NICE will create a library of quality standards that support NHS organisations as they look for evidence on how to improve outcomes for patients.

Secondly, we can promote the development and diffusion of ideas on the service models that work best for patients. Patients with long-term conditions want services that are based in the community and which support and affirm their ability to manage their own conditions. They want to be referred to secondary and tertiary care only when really necessary. That requires excellent co-ordination between all levels of the system. One of the workstreams of the quality, innovation, productivity and prevention programme is focused on delivering this approach for people living with long-term conditions such as chronic pain.

Thirdly, we can promote the development of indicators of the quality and outcome of services. Outcome indicators will help patients to exercise choice and hold providers to account. They will help service providers to benchmark their performance against their peers and improve the services that they offer. They will help to ensure that any serious failure in quality is identified quickly and action taken to ensure the safety of patients.

An aim of the national pain audit will be to measure patient outcomes using the brief pain inventory scale—an accepted pain management assessment tool. This, combined with an assessment of patients’ outcomes using other patient-reported outcome measures, will make for a comprehensive review of the quality of care. The audit will help to identify indicators that could be suitable for routine use.

Finally, we can ensure that the right financial incentives are in place. The tariff system already ensures, in broad terms, that money follows the patient and that providers are rewarded for delivering best practice. We will build on that by increasing the proportion of provider income that is responsive to the quality, not just the quantity, of care provided. It is just worth adding that in due course, patients with long-term conditions may be able to influence their choice of treatment and provider even more directly through the use of personal health budgets, which are being piloted at the moment.

My noble friend Lady Morris spoke about acupuncture. Use of acupuncture in the NHS is quite limited. The National Institute for Health and Clinical Excellence provides guidelines to the NHS on the use of treatments and it currently recommends that acupuncture is considered as a treatment option for lower back pain. However, it is often used to treat musculoskeletal conditions and a wide variety of pain conditions. Unfortunately there is an absence of clinical evidence in this area. We simply do not have the evidence base to be sure that it works for many of the conditions for which it is often used. More scientific research is undoubtedly needed to establish whether acupuncture is effective against many conditions.

My noble friend also referred to the problem of gaining access to hospital appointments at weekends. There is an important case for services such as pain control to be provided outside working hours. We would encourage local commissioners to continue to develop services such as this to meet the needs of the working public. The noble Baroness, Lady Greengross, with her wide experience, pointed out that the elderly frequently suffer worse treatment than those in other age groups. Those who commission services locally clearly have a duty to ensure that the needs of the whole community are met, with particular attention given to vulnerable older people. The multidisciplinary nature of teams is pivotal in making pain relief available to all age groups in society.

The noble Lord, Lord Luce, asked whether we would consider a national strategy for chronic pain or indeed a tsar. I am not persuaded at the moment that a tsar or a national strategy for chronic pain over and above our current policies for improving the quality of services is necessary. We need to liberate front-line staff as a first priority to enable them to work with their patients to improve the quality of services that they provide or commission. We need to ensure, too, that they have access to the guidance that is available. As I mentioned, there is a wealth of available guidance, including a commissioning pathway published by the Department of Health, and guidance for secondary care and primary care has been published by the British Pain Society, as he will know.

The noble Lord and the noble Baroness, Lady Emerton, asked whether a pain score should become part of the vital signs that are monitored for patients in hospital. Current guidance from NICE recommends that all patients admitted to hospital should be assessed and a decision made on which clinical indicators should be monitored. A pain score is one of the indicators that should be considered.

The noble Baroness, Lady Emerton, referred to nurse prescribing and how that might be improved in this area. In prescribing medication it is essential that the right person gives the right medication at the right time and that stands to reason. Nurse prescribing is a welcome development that can benefit patients significantly. She would agree that services should continue to look at what professional mix can best deliver safe, timely and effective treatments for patients. She also referred to the need for risk assessment among nurses. I have every sympathy with that point. Back pain among nurses as a result of injury at work is a great concern, both for the nurses and their families. Local employers also have a duty of care to provide safe working environments and prevent unnecessary and avoidable harm.

The noble Lord, Lord Tunnicliffe, asked about investment in services at a local population level. We share a commitment to improve health and healthcare. This is our driving principle and our proposals for reconfiguration of the NHS will drive the improvement for all patients.

I conclude by reassuring noble Lords that I should be happy to meet the noble Lord, Lord Luce, and the Chronic Pain Policy Coalition to discuss these issues further.

Academies Bill [HL]

Wednesday 7th July 2010 Lords Chamber

Report (2nd Day) (Continued)

20:40

Amendment 16

Moved by

[Lord Whitty]

16: Clause 1, page 2, line 16, at end insert—
“( ) An Academy is a public authority for the purposes of the Human Rights Act 1998 and the Equality Act 2010.”

[Lord Whitty]

This amendment should be fairly straightforward. In a sense, I am on the same page as the noble Baroness, Lady Walmsley, was at the very beginning of proceedings today. It appears slightly odd that we should propose amendments that require schools to obey the law, but life is more complicated than one would think. The point of my amendment is to clarify that, for the purposes of the Human Rights Act and the Equality Act, academies are regarded as public authorities. This is important in both contexts. The noble Baroness, Lady Walmsley, got an assurance in fairly unequivocal terms on the Human Rights Act, and I should like an equivalent assurance, at least, on the Equality Act. I am proposing this in the hope that the Minister will be disposed, if not to accept the amendment, at least to give me a statement that meets the points of the amendment.

Notwithstanding what was said about governing bodies just before the break—and the Minister and others will know that I am not entirely well disposed towards this Bill in principle—I and, I think, most people in this House, would accept that the majority of governing bodies and managements of academy schools that come through this process will operate within the mainstream of educational approach and activity. Nevertheless, it is possible and, at the edges, probable, that the process of establishing academies—and even more so free schools, which will eventually be subject to the same provisions—can lead to governing bodies that are outside of the mainstream. I put that as delicately as possible. There are particular subsets of parents who have particular views on education; particular faith groups will have views on matters of gender and sexuality that are not the normal approach that would be guaranteed if the organisation were subject to the Equality Act and the Human Rights Act. We have to bear in mind that, whatever safeguards we build in, such minorities could qualify to establish a school under that process. Alternatively, it could be that the management of the school is proved to be so lax that, whatever the ethos of the governing body, it is not properly observed. I should therefore like it clarified that the requirements under the Equality Act and Human Rights Act that apply to public authorities will apply to academies, despite their slightly ambiguous position. If the Minister can give me that assurance, we can move on to the next amendment.

[Lord Wallace of Saltaire]

My Lords, we are happy to confirm, as I thought that we had in Committee, that the Government accept that academies are public authorities for the purposes of the Human Rights Act 1998. We welcome the noble Lord’s intention of ensuring that; we will, as we said in Committee, ensure that academies are included in Schedule 19 to the Equality Act 2010. As the noble Lord will know, academies as independent educational institutions will be required to comply with all the duties in the Act that apply to schools more generally with respect to non-discrimination, reasonable adjustments for disabilities and the like, including gender issues. Academies are not currently included in Schedule 19, but the schedule will be updated before the duties come into force in 2011 and academies will be included in time for that commencement. Therefore, by the time those duties are implemented, it will be clear that an academy is a public authority for the purposes of the Equality Act.

With that clear reassurance, I hope the noble Lord will feel able to withdraw his amendment.

20:45

[Lord Whitty]

My Lords, I am grateful for that clear assurance. I shall not even pursue the avoidance-of-doubt argument. I shall accept the Minister’s remarks in good faith, and am very grateful for them. I beg leave to withdraw the amendment.

Amendment 16 withdrawn.

Amendment 17

Moved by

[Lord Greaves]

17: Clause 1, page 2, line 16, at end insert—
“(9) Before entering into Academy arrangements with any person the Secretary of State must make regulations which set out the criteria under which proposals for such arrangements may be granted.
(10) Regulations under subsection (9) shall not come into effect unless a draft has been laid before and approved by a resolution of each House of Parliament.”

[Lord Greaves]

My Lords, I move Amendment 17. In this group is Amendment 53 on a related issue, in the names of my noble friend Lady Williams of Crosby and myself, to which my noble friend will speak later.

This is really about the accountability of the new academy system and of the Secretary of State when he is exercising the powers that he will have in the management of the academy system. It has been pointed out on a number of occasions in debates on this Bill that in some crucial areas the Bill represents and provides a significant increase in the powers of the Secretary of State and a significant centralisation of the education system and the school system with regard to the academies. The more academies are created, the more that will be the case. There is a movement of powers of supervision, monitoring and various other aspects that have been discussed away from local education authorities to the Secretary of State and the processes that the Secretary of State will put in place, such as through the Young People's Learning Agency.

These amendments look at two aspects of this. The first is the creation of academies. There were amendments in Committee to make the academy orders—in relation to the conversion of individual schools, for example—subject to parliamentary approval. I think that there were some amendments from the Labour Front Bench suggesting that this should be the case. The argument was put forward, with, I think, considerable justification, that in most cases, or all cases, they would simply be a formality and that would clog up the system because there were going to be quite a lot of them. Rather than parliamentary approval being required for individual academies being set up or converted, however, this amendment would require parliamentary approval for the criteria by which academy arrangements will be created. It suggests that before entering into academy arrangements, the Secretary of State must make regulations that set out these criteria, and the criteria will be subject to parliamentary approval.

A later amendment from the noble Lord, Lord Whitty—Amendment 28, I think—is similar, in a sense. It refers to academy orders and says that the Secretary of State has to publish the criteria by which academy orders will be made, but it does not actually go as far as requiring parliamentary approval.

Whether this is about the orders or about the arrangements—obviously they are all part and parcel of the system that is going to exist—there are important policy issues here. It is not just a question of mechanically carrying out a system of creating academies; it is a question of setting out the criteria by which academies can be created. To some extent, it is a matter of whether or not schools qualify. To another extent, it is a matter of the model academy agreement, and it may be that that agreement, which this amendment does not cover, requires some sort of parliamentary scrutiny as well.

These are important issues. All these important central policy issues are being concentrated on the Secretary of State, who will have considerable power. No doubt Parliament can find ways of scrutinising these as it wishes through various parliamentary mechanisms, but there is nothing automatic in the Bill that sets that out.

That is the purpose of Amendment 17: to probe, and to promote yet again the concept that when the Secretary of State is making these decisions, the basis on which he is making them—the fundamental policy—really ought to be subject to parliamentary scrutiny.

The second amendment, which my noble friend will speak to, is about scrutiny of the system after it has been operating. It is the other side of the same coin. I beg to move.

[Baroness Williams of Crosby]

My Lords, I shall speak briefly to Amendment 53, which is also part of this grouping. I agree with my noble friend that the proposal that he makes under Amendment 17 would be appropriate.

Owing to the lateness of the hour, I shall keep to my own amendment, the purpose of which is essentially to give Parliament an ultimate level of accountability for what happens in the secondary and primary education system through the process of an annual report repeated every year about the progress of academies, their successes, their failures, their record and so forth.

I shall say clearly, but briefly, why this matters so much. The present structure of accountability is by way of local authorities through to, eventually, their electorates. That system will be largely disappearing by the time that this Bill is passed, certainly for whatever group of schools that apply to be academies. The question then becomes, as my noble friend has said, whether there is any level of accountability, other than directly that of the Secretary of State to Parliament, more precisely related to academies themselves.

It is of the greatest importance that we have a report to Parliament. There will of course be reports to Select Committees, but we all know that Select Committees—although we hope that this situation will be substantially reformed—do not get the public or media coverage that is given to Parliament itself. The idea of a report to Parliament in which all parliamentarians, Members of both Houses, can ask questions is of the first importance. I cannot emphasise enough the crucial nature of accountability in any major democratic reform of this kind. I will simply say that the purpose of Amendment 53 is to arrange for an annual report. That report would clearly be greatly strengthened by the belt-and-braces approach suggested by my noble friend, as we would then know whether academies maintained and ascribed to the agreements and arrangements that were made for them. Even so, the importance of a report to Parliament is central. We have reports to Parliament on a wide range of issues, so why not on a major part of the education of the people of this country?

[Lord Hunt of Kings Heath]

My Lords, we see a bit of a dilemma. In order to give individual schools more authority over their affairs through academy status, the Secretary of State is having to take powers to himself to authorise that. Clearly, that approach has been used before, but with power goes accountability. There is a gap. I agree with the noble Lord, Lord Greaves, that in some way the Secretary of State needs to be more accountable to Parliament for the responsibilities that he will discharge.

In Committee, as the noble Lord, Lord Greaves, said, we debated a number of amendments tabled by Members on this side of the House, which, in retrospect, were probably too detailed and would have required many hundreds of statutory instruments coming to your Lordships’ House and the other place. The noble Lord has come forward with a more sensible approach, which deals with the principles of the granting of academy status and allows Parliament to debate the criteria. As the Secretary of State will be given considerable powers in this area, it is right for Parliament to ask for greater parliamentary scrutiny. I certainly think that the noble Lord has got it right.

How quickly the party opposite has warmed to Executive power. For how many years have we heard noble Lords from both parties opposite ask for more parliamentary scrutiny? I find it surprising that the Government are not able to respond on this matter. Surely what the noble Lord suggests is not too much to ask.

[Baroness Walmsley]

My Lords, I, too, support the amendments in the names of my noble friends. I remind the House that we have already today—and, indeed, in our debates yesterday—come up with several examples of things that could legitimately be included in the annual report. Yesterday, we talked about the effect on primary schools; today, we have talked about the effect on young people with special educational needs and young people leaving care. To that, you could add achievement in exam results and all kinds of other issues. The amendment is not prescriptive in any way, but it is as well to bear in mind the sorts of subjects that Parliament may wish to consider in holding the Government to account when asking questions about such a report. This is a valuable proposal.

[Baroness Howe of Idlicote]

My Lords, I support this suggestion. There will be considerable power at the centre and a need for parliamentary accountability. The approach proposed by the noble Lord, Lord Greaves, and spelt out in more detail by the noble Baroness, Lady Williams, is one that I certainly find acceptable.

[The Parliamentary Under-Secretary of State for Schools (Lord Hill of Oareford)]

My Lords, the issue of accountability that we have just been debating is extremely important, as the amendments rightly reflect. I take the point made by the noble Lord, Lord Hunt, as he prompted me to think whether it is right to make provision for greater parliamentary scrutiny. I think that there is broad agreement across the House on the need for that, which I shall come back to in a moment.

Amendment 17, moved by my noble friend Lord Greaves, would, as we have debated, require the Secretary of State to make regulations to set out criteria for entering into academy arrangements. I hope that he will accept that the Government have made it clear that they will apply a rigorous fit-and-proper-person test in approving any sponsors of an academy or promoter of a free school. We have circulated the draft funding agreements so that noble Lords can see the kind of terms and conditions that will apply to academies. We will publish the criteria for deciding applications from schools that are not rated as outstanding by Ofsted, which, as my noble friend knows, are proceeding on a slower timetable in any case.

That said, since the academies programme started, the signing of the funding agreement has always been a matter between the Secretary of State and the academy trust. The Secretary of State has discretion over his decision in that respect to enter into academy arrangements and will want to review each application for an academy order on its merits. We think that some flexibility is needed in his consideration of these factors to ensure that he can make the right decision in each individual case. We have touched before on the point that the Delegated Powers and Regulatory Reform Committee has scrutinised the Bill and is satisfied that the level of parliamentary scrutiny it includes is appropriate. Nevertheless, as I alluded to yesterday on Report, there is a case for the Government going further in trying to make sure that Parliament has the opportunity to see how the policy is working.

21:00

Before I come to that, I have a couple of further points of, I hope, reassurance. The funding arrangements will require academy trusts, as charities, to publish on their websites annual accounts, an annual report, their memorandum and articles of association and their funding agreement. If the Government’s amendment to require academies to comply with the Freedom of Information Act 2000 is enacted, they will be legally required to make available other information in response to requests. These are all mechanisms to make more information available.

There will be no shortage of debate, but I accept the case argued by my noble friends Lord Greaves and Lady Williams, who want further reassurance. I also agree that, as we have already discussed, Parliament should have a more formal opportunity to scrutinise the progress of the programme. This, I think, was the point made by the noble Lord, Lord Hunt. I am grateful to my noble friends Lady Williams and Lord Greaves for pursuing this point, and I am happy to confirm that the Government accept the principle of their Amendment 53. Perhaps I may therefore suggest to them that, having given this commitment on the Floor of the House, I speak to them outside the Chamber and agree with them how to take the matter forward at Third Reading. In the light of that, I ask them to withdraw their amendments.

[Lord Greaves]

My Lords, I am grateful for what the Minister said about Amendment 53, which is half of what we are putting forward. We would be very happy to take up his offer. On that basis, no doubt my noble friend will not move Amendment 53 when we finally get to it some time tonight.

In relation to Amendment 17 there is a question that will not go away. There are fundamental issues that go beyond whether an application for academy status is being made by a fit and proper person. While the criteria for approving academies will be published, it seems that there need to be ways in which Parliament can discuss those criteria. We have a Secretary of State at the moment who is full of revolutionary zeal in this area. He is being very open and honest with us, through the Minister, about how he will approach this and the kind of criteria which will be looked at. However, Secretaries of State do not last for ever. There will be further Secretaries of State in the future; they will be different people with different ideas, and may wish to change the criteria. Under those circumstances it seems absolutely right that he or she should come back to Parliament.

[Lord Hunt of Kings Heath]

My Lords, given the complete mess over the schools building programme, how long does the noble Lord give the current Secretary of State?

[Lord Greaves]

That question is a long way above my pay grade. The Secretary of State seems to have quite a lot of influence in the Government at the moment. We will see how it goes and I wish him the best of luck.

The Minister said that the funding agreements would be published for each school; each application would be considered separately; and freedom of information requests will get all the information they require in relation to each school. We understand all that but it is different from parliamentary scrutiny of the overall policy and the criteria on which the Secretary of State will make the decisions. This is an issue which will not go away. It will probably be debated in considerable depth when the Bill gets to the House of Commons. We will observe with interest how it gets on. In the mean time, I beg leave to withdraw the amendment.

Amendment 17 withdrawn.

Amendments 17A and 17B not moved.

Clause 2 : Payments under Academy agreements

Amendment 18 had been retabled as Amendment 19A.

Amendments 19 to 20 not moved.

Amendment 21

Moved by

[Baroness Wilkins]

21: Clause 2, page 2, line 35, at end insert–
“( ) In Schedule 1 to the School Finance (England) Regulations 2008, after paragraph 8 insert—
“8A Where a child is a registered pupil at an Academy, expenditure in respect of services for making provision for pupils with low incidence special educational needs or disabilities.”
( ) Where a local authority fails to secure satisfactory provision for pupils with low incidence special educational needs or disabilities, the Secretary of State may make alternative arrangements.”

[Baroness Wilkins]

My Lords, I speak to Amendment 21. In Committee, I spoke about my concerns that the Academies Bill will fatally undermine specialist support services for children with low incidence needs. I am grateful to the Minister for his letter of 2 July in response to these concerns, and to the noble Lord, Lord Wallace, for his reply in Committee. I particularly welcome the Government’s commitment that pupils in academies with low incidence SEN needs or disabilities will receive the support they require from specialist support services. But, unfortunately, my worries have not yet been allayed. The Special Educational Consortium, particularly the National Deaf Children’s Society, RNIB and Sense, share my concerns.

The funding arrangements for specialist support services may be complex but the problem is clear. If funding from the schools budget for specialist support services is to be dispersed widely to a large number of academies in a given area, this will reduce the funding available to existing specialist support services in local authorities. It takes away the pooling of resources that ensures services to children with low incidence needs can be met at reasonable value for money. As the noble Lord, Lord Hill, put it in his letter to me, this will result in “dis-economies of scale”. The noble Lord noted that academies will be able to buy back support from their local authority. However, a survey by the National Deaf Children’s Society raises serious concerns that this is simply not happening. The society found that of 66 local authorities where a deaf child with a statement of SEN was enrolled in an existing academy, in only 17 of these local authorities were the academies buying in support.

So what is happening to the deaf children in the other 49 local authorities? The society suspects that many local authorities are providing services free of charge, but that clearly will not be sustainable with greater numbers of academies. The worst case scenario is that children with sensory impairments are going without the support they need. NDCS is aware of examples where this is currently happening—for instance, in one local authority in Yorkshire and the Humber, where uncertainty over funding and buy-back has left deaf children totally unsupported.

In Committee, the Minister stated that he recognises this is a continuing problem, and that was very welcome. However, I would like him to go further and commit to finding an urgent solution to this problem. I recognise that it is not a new problem. However, if the Academies Bill is going to make matters worse, surely the Minister has a responsibility to act now before the Bill becomes law. In Committee, he suggested that “partnerships among schools” will clearly be the best way forward. Will he say a little more about how this will work in practice? How will these partnerships be funded? What support and guidance are being provided to schools to develop them? How many partnerships are there in place already? Most importantly, what evidence is there that these partnerships will ensure that every child with low incidence needs gets the support that they need?

The Minister also stated that academies will have access to top-up funding to cover the costs of support for children with low incidence needs. He went on to say that this will be funded by the local authority from its schools budget. Will he confirm that this is the same schools budget which will be cut if a large number of schools convert to academies? If so, how can these specialist support services be funded and provided on a reliable and sustainable basis?

The Minister stated that if the academy fails to secure the necessary support, it will be in breach of its funding agreement, and that the Young People’s Learning Agency can investigate, following a complaint. In Committee, the noble Baroness, Lady Sharp, made the important and obvious point that the YPLA is not an inspection agency. In response, the Minister stated that voluntary organisations will monitor the situation. However, surely he must agree that this is a very weak and unacceptable safeguard against the risk that children with low incidence needs will be denied the support they need. Many voluntary organisations simply do not have the capacity to monitor provision in large numbers of individual academies across England. It is not appropriate for such organisations to act as a watchdog, relying on them to make sure that the Government and academies fulfil their legal duties towards children with special educational needs.

My amendment would move funding for specialist support services out of the schools budget and into the LEA budget. This would protect these services from some of the unintended consequences to which I referred earlier. In Committee, the Minister did not set out his view on this. If it is his view that this amendment should not be passed, I should be grateful if he could explain why, and what alternative remedy will be put in its place. My amendment would also give the Secretary of State the power to make alternative arrangements if specialist support services in any particular area are inadequate.

In his letter, the noble Lord, Lord Hill, noted that academies will in future be free to buy in services from other providers. In light of the difficulties that some local authorities have in meeting the needs of children with low incidence needs, I recognise the appeal of this and hope that this option will be explored further, as I have no desire to prop up services that are not doing a good job. However, I stress that this needs to be fully thought through and fully planned for.

I very much welcome the fact that officials have met with the National Sensory Impairment Partnership, as the noble Lord, Lord Hill, pointed out in his letter. I have been told that the partnership also welcomes this and believes that there has been a useful discussion and exchange of views, which it is keen to continue. However, it does not believe that there has been sufficient progress in resolving the outstanding questions and concerns.

The partnership believes that the Government should set up a time-limited working group that will consider alternative arrangements and make urgent recommendations. This group should include representatives from the Department for Education, local authorities, professionals, head teachers of academies and maintained schools, and parents. I firmly agree with the partnership. If the Government wish to show that they are serious about addressing these important concerns about specialist support services and diseconomies of scale, it is imperative that a working group be set up immediately, and I very much hope that the Minister will give me a positive reply to this proposal, which would do much to alleviate the concerns.

Children with low incidence needs may, by definition, be fewer in number. That cannot be an excuse to pass a Bill which would potentially prevent many from getting the support that they need. I urge the Minister to do more than just recognise that there is a problem. He must find solutions before this Bill is allowed to pass. I beg to move.

[Baroness Howe of Idlicote]

My Lords, I support the amendment in the name of my noble friend Lady Wilkins, as I did with regard to her amendment in Committee. I agree with my noble friend and share her concerns on specialist support services for children with low-incidence needs. I also agree that the Minister has not yet, I fear, provided a satisfactory response on these important concerns. I also reiterate the point made by my noble friend that the Government’s desire to pass the Bill speedily must not be at the expense of children with low-incidence needs.

In Committee, I highlighted my concerns about the impact of the Bill on the range of services delivered by specialist support services outside school. For example, many services provide pre-school support directly to families and children to aid language acquisition and to teach Braille. Support may also be given to ensure that children with visual impairments have the necessary independent living skills. Such support is essential if we wish to ensure that children with low-incidence needs are able to fulfil their potential and live independently later in life. The cost of failing to provide such support is likely to be prohibitive to individuals with low-incidence needs and also to the Government’s welfare budget. I am concerned that such services may be compromised if the schools budget for specialist support services is cut when a large number of schools convert to academies. When it comes to low-incidence needs, surely it is vital that our limited resources are pooled and used effectively to fund the services and ensure the best possible value for money.

I am concerned also that these unintended consequences will result not only in wastage but also in very poor value for money. These concerns are shared by the Special Education Consortium. I regret that the Minister did not address the concerns that I expressed in Committee that such preschool services would be undermined by the Bill. I strongly urge him to do so today.

21:15

[Lord Low of Dalston]

My Lords, I will speak briefly given the hour. Despite the reassurances received by the noble Baroness, Lady Wilkins, there remain a number of concerns that need to be addressed. The specialist services of which the noble Baronesses, Lady Wilkins and Lady Howe, have spoken are at the heart of special education provision. As we have heard, they include support for mainstream teachers, Braille teaching and mobility instruction for visually impaired pupils, communication support, advice on equipment and speech and language support for pupils who are deaf or hard of hearing. I declare an interest as a vice-president of the RNIB, an organisation that is very concerned about the maintenance of services for blind and partially sighted pupils.

The services that I have mentioned are examples of those that meet low-incidence needs. The LEA is a large enough unit for these needs to attain a critical mass and generate demand for a level of support services that is capable of being sustained. The academy system is much more atomised and fragmented, and much less able to sustain a critical mass of support services. Of course, academies can form consortium arrangements, and the Minister spoke of partnerships; but it will inevitably take time to get these up and running, and in the mean time local authority arrangements are likely to become increasingly vulnerable as academies, with their attendant funding, opt out of the local authority system. Therefore it is absolutely essential that the Government make clear in detail exactly how specialist support services will be sustained in the new environment.

[Baroness Grey-Thompson]

My Lords, I support the amendments tabled by the noble Baroness, Lady Wilkins. The noble Baroness, Lady Campbell, wanted to speak in support of the amendment, but could not make the late hour for health reasons. I am therefore pleased to take her place, after taking her considerable briefing.

I share her concern about losing essential support for disabled children if we do not ensure that the Bill delivers an appropriate system to do the job. I am a member of the All Party Parliamentary Group on Disability, chaired by the noble Baroness, Lady Campbell. The group has frequently been told that too many disabled children are not getting the specialist support that they need at school fully to engage with the curriculum. I am concerned that the Bill may have the unintended consequence of worsening this problem. I will give an example. The National Deaf Children's Society identified a case in the West Midlands in which a small all-through school became an academy. It admitted a disabled child who required significant levels of support. However, the academy had difficulty in funding this support as it took up a disproportionate amount of its special educational needs budget. As a small school working with one deaf child, the academy was unable to access the economies of scale that would have made the support for this child affordable.

On a more positive note, I am pleased to hear about Waltham Forest local authority, which decided to adopt a different funding model when a delegated structure similar to that proposed in the Bill failed to support the needs of disabled children. Now, a local special school receives its funding to operate an outreach service for all other local schools free of charge.

The lesson from Waltham Forest demonstrates how important it is to think through the impact of any changes to funding, especially for support services, before proceeding. I believe that this amendment helps us to do that and to avoid unnecessary damage to the education of disabled children. I urge the Minister to respond positively to it.

[The Earl of Listowel]

My Lords, I rise briefly to support the amendment and apologise for not being present when the noble Baroness moved it. I know that, with his wife’s experience as a volunteer, the Minister is familiar with these issues. Recently I spoke to a teacher who had completed her first year working with teenagers with autism and she told me how exhausted she was. She had spent an outward bound weekend with them; they had been doing a school play the previous evening; and she had had to complete the school reports. She was utterly exhausted and told me how challenging these children could be. However, she said, “I love these children. It’s so satisfying to do this work”. We need to ensure that the professionals who work with these children get the best specialist support available. I share the concern raised by my noble friend Lord Low about the dangers of atomisation and fragmentation, and I know that the Minister will also very much bear that in mind. We all have to work in partnership if we are to achieve the best outcomes for these young people.

[Baroness Sharp of Guildford]

My Lords, I join other noble Lords in supporting the noble Baroness, Lady Wilkins, in this amendment. Yesterday, when we had a debate about numbers and needs, we raised some questions about the funding formula. We also spoke about the ready reckoner which the Government have produced and which is on their website.

Looking in more detail at the ready reckoner, they make it quite clear that home-to-school transport, educational psychology, SEN statementing and assessment, monitoring of SEN provision, parent partnerships, prosecution of parents for non-attendance, individually assigned SEN resources for pupils with rare conditions needing expensive tailored provision, and the provision of pupil referral units or other education for a pupil will all be paid for by retained funding by the local authority, but the other general support services—this is the issue with which we are concerned here—will fall under the part of the funding that will be dispersed among the schools, or certainly the academies. Looking at the list of what comes under the local authority central spend equivalent grant, which is the one that is going to be shared out among the schools, the services and costs that are funded from local authorities’ schools budgets include things such as museum and library services, the costs of the local authority statutory and regulatory duties, and so on. In other words, it would appear that the Government currently envisage that this funding should come not just from the dedicated schools grant but from general funding which comes out of council tax, plus some money from the Department for Communities and Local Government which goes towards, for example, the funding of museums and libraries and outdoor education services.

There are very real reasons to worry. Yesterday, I asked the Minister whether we were raising the expectation of many of these schools that they would receive rather more funding than they will actually get. Looking in detail at the advice given on the website, I think that there is more to it than that. Questions arise about whether this money comes within the schools budget. As I said, we are looking at the fair funding formula and the problems that dispersing this money will cause local authorities. It will give them very real problems in providing those support services because of the loss of economies of scale and so on.

I also endorse what the noble Baroness, Lady Wilkins, said about the problems of following through on complaints in relation to the YPLA. As she said, the Minister suggested that voluntary organisations might do the monitoring. That is a very unsatisfactory reply. I asked the Minister yesterday about the capabilities and capacity of the YPLA which is a new organisation that is only just off the ground. It is still finding its feet and I wonder whether it has the capacity, as the number of academies grows, to fulfil these functions. I press the Minister to think further about the proposals made by the noble Baroness.

[Lord Hunt of Kings Heath]

My Lords, first, I thank the Minister for his letter to my noble friend, which has been extremely helpful and has very much informed our debate. As I said in an earlier debate on SEN, the response that academies can buy SEN support services from their local authority, from neighbouring authorities or from other providers is in itself unexceptional. It is absolutely right that academies should be able to do that.

There could be a problem in two cases. The first, which was mentioned by the noble Baroness, Lady Grey-Thompson, is where an expensive support service is required for an individual student. Secondly—I am thinking of our previous debates on the role of governing bodies—I should have thought that when academies are first established their governing bodies will be very cautious when it comes to budget making. That will be entirely understandable. I can see that budgets for expensive special support services will be cut back as it will be the natural thing to do. By the time they realise that that was probably a mistake because they are faced with demands that must be met, the risk is that the kind of high quality services funded at present by local authorities will have gone out of business. That is why the Government need to reflect carefully to ensure that good services are protected.

I know that the noble Lord has talked about partnerships and we would all like to hear more about that, but this is an area in which there could be a positive role for local authorities. Again I urge the Government to think carefully. If they do not take action in this area there will be a decline in the special support services that are required. Surveys will be undertaken and because the Government are taking local authorities out of the picture the problem will come right back to Ministers. They may think that in developing this new system they can withdraw and say that it is the responsibility of individual academies, but I can tell the Minister from bitter experience that in the end it will come back to Ministers who will have to have a response.

[Lord Hill of Oareford]

My Lords, I will be fairly brief because in our earlier exchange I accepted the point made by the noble Lord, Lord Hunt, that as regards low-incidence SEN there is an issue that we need to look at.

I am grateful to the noble Baroness, Lady Wilkins, for referring to the work that my officials have been doing with her and the National Sensory Impairment Partnership. She made a powerful case, and I shall reflect on what she said and perhaps talk to her further about it. If she can spare the time we can meet officials to consider practical ways forward. I do not have an answer tonight and I cannot go further than I should, but I hope that she and others will accept that on the issue of SEN I have sought to be sensitive. I am not dismissive and if the noble Baroness will agree to meet, we can discuss her concerns. If she thinks that that is a fair and reasonable way forward, perhaps she will withdraw her amendment and we can meet outside the House.

[Baroness Wilkins]

First, I thank all noble Lords for their support for the amendment and for recognising and emphasising what a serious concern it represents. I am most grateful to the Minister for his awareness and the trouble that he has taken. I will definitely take up his offer to meet his officials, and I hope that we can reach a satisfactory conclusion. With that, I beg leave to withdraw the amendment.

Amendment 21 withdrawn.

21:30

Amendment 22

Moved by

[Baroness Garden of Frognal]

22: After Clause 2, insert the following new Clause—
“Monitoring provision in Academies for children with special educational needs
(1) The Secretary of State shall, in respect of each academic year, prepare a report and lay it before Parliament on the quality of educational provision made for children with special educational needs who are registered pupils of Academies.
(2) The report shall record the number of children with statements of special educational needs made under section 324 of the Education Act 1996, and state whether or not this figure is reasonable given the characteristics of pupils on the rolls of Academies and maintained schools.
(3) The report shall state what action the Secretary of State intends to take to improve the quality of provision of children with special educational needs in attendance at Academies.”

[Baroness Garden of Frognal]

I move Amendment 22 and speak to Amendments 45 and 46, also in this group, which are in my name and those of my noble friends Lady Walmsley and Lady Sharp. The amendments complement those that we were discussing earlier under the amendment of the noble Lord, Lord Hill—Amendment 11. We warmly welcome what the Government have done in their amendments, but feel it desirable to go a bit further for the avoidance of any doubt. That is why we have tabled the amendments. I give credit to the Minister and the Government for responding so fully to us and others on SEN matters.

Amendment 22 provides that the number of SEN statements is monitored, so that corrective action can be taken if the proportion of children in academies rises significantly. It was drafted with the perspective of a parent of a child with special educational needs in mind. Much has been done in recent years to reduce the need for parents to see the statement as the only guaranteed way to ensure that their child gets a special educational provision that he or she wants. A major inquiry by the House of Commons Education and Skills Committee addressed that topic. Change brings uncertainty, which will almost inevitably be the case if a large number of schools move to the academy sector. Parents, whose views are pivotal in the assessment process, are likely to want their children's provision to be safeguarded in a statement, so that they know what will be guaranteed, rather than rely on oral or even written commitments from schools that the assessed needs will be met.

It would be wrong to put limits on how many children can be statemented, but there is probably not much that can be done in the short term. Clearly, this issue needs to be monitored, and the proposal here is for an annual report, as proposed by my noble friend Lady Williams. As the Minister said, that annual report is acquiring biblical proportions. We are asking for some straightforward statistical information about numbers of SEN pupils in academies, along with the numbers of those with statements, so that the proportions can be monitored. That information should be readily available. The amendment also proposes a review and recommendations from the Secretary of State on the quality of provision. It is a probing amendment to see whether the Government share that concern and, if so, how they will address the specific concerns of parents of children with special educational needs attending academies who seek to have them statemented.

Amendments 45 and 46 take us back to government Amendment 11, which is drafted to meet concerns about academies meeting their responsibilities for pupils with special educational needs. The letter on the amendments that the noble Lord, Lord Hill, sent to Members of the House states that,

“my starting point has been to try to secure parity between Academies and maintained schools in the requirements placed on them in respect of SEN”.

That approach is of course welcome, but does not take into account the totality of arrangements for special educational provision in an area and the arrangements to support children outside school. It looks at one very important aspect, the role of school governors, but not the whole picture.

Amendments 45 and 46 attempt to redress the imbalance in the Minister's approach. The Minister's amendment refers to the governing body’s responsibilities under Chapter 1 of Part 4 of the Education Act 1996. Noble Lords may well recall that that has its origin in the Education Act 1981, which implemented the report of the noble Baroness, Lady Warnock, on special educational needs. It is interesting to note that that was commissioned by the noble Baroness, Lady Thatcher, when Secretary of State, received when the noble Baroness, Lady Williams, was Secretary of State, taken through the Commons by the late Lord Carlisle, with the Labour Opposition speaker being the noble Lord, Lord Kinnock, when Clement Freud was the Liberal Party speaker—an impressive, distinguished and diverse cohort, I am sure that your Lordships will agree.

The 1981 Act was innovative in that it was the first legislation to give specific responsibilities to governing bodies and head teachers. It followed Lord Carlisle’s 1980 Education Act, which required working governing bodies for all schools. It is therefore worth examining why certain responsibilities were given to governing bodies, why other responsibilities were given to local authorities and the effect of the government amendment on those local authority responsibilities if Amendments 45 and 46, or something similar, are not adopted.

Amendment 45 applies to Section 321 of the 1996 Act, which is entitled,

“General duty of local education authority towards children for whom they are responsible”.

It is the first of the sections on the identification and assessment of children with special educational needs that enable local authorities to statement children whose needs must be safeguarded. Section 321 places responsibility on the local authority to identify children in local authority maintained schools. The reason why the responsibility is placed on the local authority is to enable a local authority-wide approach to provision. The level of statementing varies widely between authorities, not because of anything to do with the efficiency of the local authority, but because of collective decisions about what sort of provision to make for what sort of need locally. Indeed, inefficiencies might well occur if this were attempted nationally, rather than locally, as matching need to provision is best done locally, or, indeed, if schools chose who they wanted statemented without reference to a local policy.

The code of practice on special educational needs puts responsibility on the school for the initial assessment process through the school action and school action plus stages, but it is done within an agreed local framework that matches need with provision through a local authority-wide assessment policy. Section 321 permits other bodies to inform the local authority of children for whom the authority may have to determine the special educational provision. Academies are included under Section 321(3)(c). The Minister’s amendment does not require academies to comply with any local authority-wide strategy for the identification and assessment of children with special educational needs as there is no specific duty on maintained school governing bodies to do so. Amendment 45, however imperfect, attempts to meet that concern.

To clarify, the point is that if an authority has one or two academies with perhaps 5 to 10 per cent of the student population, then non-compliance by academies on the initial identification of children is perhaps not of great concern. However, if the proportion rises to a critical level—perhaps 20 to 30 per cent—it will become difficult for the local authority to manage and to take responsibility for an authority-wide identification process that matches local provision. This was recognised in the previous experiment in allowing schools to opt out of their local school system through grant-maintained school status and, right on cue, the Education Reform Act 1998, which was introduced by the noble Lord, Lord Baker, brought grant-maintained schools into the equivalent provision in the 1981 Education Act. This is a probing amendment to ask why the Government have not taken the lessons from the 1988 legislation.

The same argument applies to Amendment 46, which amends the other specific local authority duty in relation to schools for children with special educational needs. Once the authority has made a statement of special educational needs, it is right and proper that it should monitor the provision made for a child in school and can take responsibility for the use of any additional resources allocated to a child to support his education. If a child is in a maintained school, there is no need to have specific legislation allowing the authority to monitor the child’s education. Section 327 is entitled,

“Access for local education authority to certain schools”.

It gives the local authority the right to access at any reasonable time one of the authority’s children who has been placed in a maintained school in another local educational authority area or in an independent school. The latter will include academies. Will the Minister confirm that that is the case and also indicate how the local authority can exercise this responsibility should an academy not wish to comply? I look forward to the Minister’s reply and beg to move.

[Lord Astor of Hever]

I remind noble Lords that we are on Report and encourage them to keep their speeches as short as possible.

[Baroness Whitaker]

My Lords, I rise to speak briefly to Amendment 44A, which rather oddly is in this group. The arguments I made to ensure that the design of academies in new or refurbished buildings must be conducive to good education and not a waste of public money in Committee are still the same. I will not repeat them now.

I have tabled this amendment again because the answer from the noble Lord, Lord Wallace of Saltaire, although helpful, did not deal with what general minimum design standards would operate, and no letter was forthcoming from the department to amplify his, perhaps I may say rather vague, response that he had no reason to doubt that they did. I would not press for a statutory requirement if it were definite that the free schools network would include such design advice in the general advice that the Government are funding them to give to aspirant academy-makers.

The noble Lord cited the law covering access for students with disabilities, which was welcome, but I am sure that groups of parents, teachers or others need to get themselves guidance on how the broad provisions of the Disability Discrimination Act and successor obligations under the Equality Act should be translated into design.

The Government’s approach to housing, in their letter to me of 15 June, says that they will issue guidance by,

“setting out minimum environmental, architectural, design, economic and social standards”.

Are academies where children will spend a large proportion of their time at a formative period of their life really so much less important?

[Lord Low of Dalston]

My Lords, I shall say a brief word about Amendment 52, which is tabled in my name, and I hope that I can perhaps win the prize for the briefest speech of the evening. The object of Amendment 52 is to impose the SEN obligations on existing academies, which we already discussed to a fair extent when we considered government Amendment 11. The Minister made it clear that the SEN obligations would be inserted into the funding agreements of existing academies. The only point of unclarity that remained was whether we would have to wait for the existing agreements to run their course or whether the obligations could be inserted before that. If the Minister accepts the spirit of this amendment, it would enable the obligations to be inserted into the funding agreement within 12 months of the Act coming into force. I urge that that approach be adopted, rather than that we should be made to wait a number of years for existing agreements to run their course.

[Lord Howarth of Newport]

My Lords, I should like to speak to Amendment 44A, and I thank my noble friend Lady Whitaker for once again tabling the issue of the design of school buildings on Report. To take care to design school buildings well is a mark of respect for school communities. It is also plain common sense, not only because of its effects on the morale of the school community but because of its benefits for practical functioning and, very importantly, for the benefit of disabled children in schools. Inclusive design that enables disabled children to be fully integrated into the whole life of the school community is design that is good for everybody. This is not simply a matter of aesthetics but of fitness for purpose.

By no means all the schools that have been built under the Building Schools for the Future programme have been exemplars of good architecture and good design, but a number of them have been very good indeed. One of the virtues of this programme has been that it has encouraged some of our leading architects in this country, who are of course leading architects in the world, to return to school-building in their practices.

If they are retained, minimum design standards will do much to ensure that the schools that are built in the future are built to good design standards. We did not get a clear answer in Committee—I make no criticism whatever of the noble Lord, Lord Wallace of Saltaire, who was unable to clarify the point—as to whether the Government intend to retain minimum design standards. I hope that they will be able to give us that assurance this evening.

I have to say that I draw no encouragement from the Secretary of State’s Statement on education funding on Monday after we finished Committee. In the course of that long statement on school buildings, the only references he made to design were disparaging. He picked out care to ensure good design as an instance of what he regarded as undue bureaucracy, cost and delay. He cited as instances of wasteful process that,

“local authorities involved in this process have employed … an enabler from CABE, the Commission for Architecture and the Built Environment—another non-departmental public body”.—[Official Report, 5/7/10; col. 40.]

It is a great pity to dismiss CABE. The enablers that CABE has ensured have been available to assist people who face the difficult and complex responsibility of commissioning and securing good new school buildings. CABE enablers are design professionals who generously and public-spiritedly are willing to give their services for modest fees, well below market rates, to enable people facing these challenging, difficult and important tasks to know better how to handle them.

A moment later the Secretary of State said that,

“local authorities were expected to engage a design champion”,—[Official Report, 5/7/10; col. 41.]

Design champions exist in some local authorities, although they are not compelled to have them. These are people who are already there, whether as elected members or as senior officers, whose role in the local authority is to advocate good design. Given the enormous power that local authorities have over the built environment for good or for ill, through planning and through the procurement of buildings, it must be a good thing that they appoint someone from within their midst to prompt and remind them all the time of their responsibility to ensure that the buildings that are built under their auspices are well designed. I suspect that the Secretary of State had not understood what these functions were when he ridiculed them.

Later in the Statement, the Secretary of State went on to announce that he was going to appoint a “capital review team”. Among the people he named as members of that team is Sir John Egan. Sir John is, of course, deeply versed in the issues of building design and quality, and will be a most excellent member of that team. I am more concerned to see that the group operations director of Dixons Store Group and the director of property services at Tesco are included in the group. I know nothing of these individuals. They may be the most enlightened people, but I do not think that the most ardent admirers of Dixons and Tesco—and they have many good qualities—would claim that they have been patrons of fine architecture: rather the reverse. The banality and triteness of the design of modern supermarkets is a sad and indeed disgraceful falling away from the best of our historic traditions in the design of department stores and shop fronts.

The Secretary of State says that he wants buildings to be built more quickly and to look at the scope for savings. The reality is that a little time taken to achieve good design is an investment that richly pays for itself in reduced lifetime costs of the building, in the better performance of all those who work in it, and in the quality of life for years ahead of the people in the community immediately around it. The Secretary of State is a civilised man with a sense of history, and so of course is the Minister, the noble Lord, Lord Hill. I hope that they will think more deeply about their responsibilities in this area.

21:48

[The Earl of Listowel]

My Lords, I wish to speak to Amendment 44A. Your Lordships may recall—and I hope that I recall it correctly—the head teacher of a new academy school saying, “We didn’t need to build a playground for this school because we’re going to be working our students hard in the school premises”. I hope that the Minister will bear in mind, when he considers the issues of minimum standards, that children need to have a playground area. It is important in tackling obesity, in socialisation, and as a release from study so that the children can better concentrate on their work. Research indicates that the amount of time children have for play has been picked away at over the years, so I hope that he will keep in mind the importance of school play areas.

[Lord Greaves]

My Lords, I shall be brief. As the noble Lord, Lord Howarth, and the noble Baroness, Lady Whitaker, know, I support a great deal of what they have said about design. The only question I have is on the Building Schools for the Future programme. Why are so many of those schools externally drab at best, and in some cases quite hideous? Given the apparent pause in school building, would it not be a good idea if that was used to ensure that, when building starts up again in a big way, as no doubt it will in the future, the external design of many of the buildings will be much better than the ones that have been erected in the past two or three years?

[Lord Hill of Oareford]

My Lords, Amendment 22 provides that an annual report should be made to Parliament on the quality of SEN provision in academies and seeks to ensure that academies are effectively doing their fair share. As we have discussed, I have sympathy with those aims but I believe that they will be delivered through different processes. Academies will continue to be, as they currently are, accountable for making provision for children with SEN and subject to the same accountability mechanisms as maintained schools. These mechanisms include published Ofsted reports that give judgments about the quality of SEN provision; the publication of attainment data, including for SEN pupils; and school census returns from which comparable data are published about the numbers of SEN pupils, including those with statements, in different types of schools. There will not be any reduction in the amount of information about academies that we make public but, as regards the report to Parliament—which we have spoken about in a different context—we want to reflect on the quality of SEN provision in academies.

On Amendment 44A, I take the points that have been made about design. I apologise to the noble Baroness, Lady Whitaker, that she has not had her letter sooner. We have been awaiting the announcement of an independent review of capital investment—this relates to the point made by the noble Lord, Lord Howarth—which is due to report to Ministers in mid-September. As the noble Lord pointed out, that review will include consideration of school design requirements and school premises regulations. I know that both noble Lords have strong views on that—the noble Lord, Lord Howarth, also has strong views about its membership—and their points on the design aspect ought to be made to the review. I am sure they will be. I accept totally the case that has been argued that the environment in which learning takes place must be conducive to education as far as possible, and that good quality buildings, classrooms and equipment are necessary for children to learn and to ensure that school is a place where they feel happy and secure in their learning.

No one is arguing for unnecessarily prescriptive building and design requirements—this may be a point made to me by the noble Lord, Lord Howarth, in a different setting—particularly in times of straitened financial conditions. The balance must be to ensure that we have effective regulation which delivers the design features that noble Lords have talked about but which is not bureaucratic, cumbersome and wasteful. There is a balance to be struck and we need to consider the evidence on it.

The core point is that it is our intention that the same standards should apply to academies as to maintained schools. As my noble friend Lord Wallace said in Committee, all schools are required to comply with the requirements of the Disability Discrimination Act 1995 to draw up and implement accessibility plans which provide for the implementation of improvements to school premises to accommodate existing and future disabled pupils within a reasonable period.

Amendments 45 and 46 would require academies to alert local authorities when a pupil is identified with SEN. This is already a requirement on academies. Section 317 of the Education Act 1996 imposes an obligation on governing bodies of maintained schools to use their best endeavours to ensure that special educational provision is made. That would include notifying the local authority where necessary. Obligations under Section 317 are replicated in the current academy funding agreements and will continue to be replicated in the new academy arrangements. I can pick up on more detailed points with my noble friends.

I turn briefly to Amendment 52, tabled by the noble Lord, Lord Low. I understand the purpose of the amendment, but there are legal reasons, as we touched on earlier, why the Secretary of State cannot take powers to vary the contracts unilaterally. They have been entered into willingly by both parties, so the retrospective change that the noble Lord, Lord Low, requests would be difficult. My main concern in thinking about SEN has been to ensure that, where there is a policy change and where there could be a reasonable number of schools converting, all those new academies are put on an equal footing. I believe that we have achieved that. It is a significant step forward which I know has been welcomed by the noble Lord. Existing academies which move to the new model funding agreement will also have to comply with our new requirements. Not all existing academies will have to wait for the whole period. Those which move to a slim-line funding agreement will automatically be covered by the new requirements.

I hope that that has dealt with the main points that have been raised.

[Lord Puttnam]

I thank the Minister for giving way. Perhaps I may make a general point which I suspect the noble Lord, Lord Baker, and the noble Baroness, Lady Perry, whose experience is greater than mine, would agree with. Teachers are peculiarly sensitive people. They are used to being let down; they are used to being underappreciated. I used possibly the wrong word earlier when I said that a lot of what is going on at the moment is clumsy. I cite an example that my noble friend Lord Howarth mentioned. Use of Dixons and Tesco as advisers on school building gives the impression that there is an interest in shelf space as opposed to aesthetics. That is not a good impression. I suggest to the Minister—who has done very well during the passage of this Bill—that at every single turn he thinks through the message that is being sent out to the professionals. It is very important that the Secretary of State’s intent is understood, that it is couched in terms that they can empathise and sympathise with and that they do not feel that they are being bullied or taken advantage of.

[Lord Hill of Oareford]

I take the point that the noble Lord makes; I take also his point about aesthetics. He and the noble Lord, Lord Howarth, mentioned Tesco. I had better not be drawn into commenting on its designs since it has kindly agreed to serve on the review, but one thing that I know about it is that it is brilliant at finding ways of delivering what it is tasked to deliver in the most efficient and cost-effective way, learning each time and driving down costs. If one can find an approach that does not send those messages about aesthetics but enables us to deliver more well-designed school buildings for a lower cost, and if, as some people allege, Building Schools for the Future has been running 30 per cent over budget—

[Lord Knight]

I am most grateful to the Minister for giving way and I shall be very brief. Will he ensure that the expertise within Partnerships for Schools is used by this review? Contrary to what the Secretary of State said in his Statement on Monday, Partnerships for Schools has met every one of its targets in the past three years—he said that it had not met any of them—delivering good design, really good value for money and great learning environments.

[Lord Hill of Oareford]

We work closely with Partnerships for Schools. I know that the noble Lord has direct experience of that body and I shall bear his points in mind. I shall also be less long-winded next time. I hope that I have given some answers to the questions raised and that noble Lords will agree not to press their amendments.

[Baroness Garden of Frognal]

My Lords, I thank all noble Lords who have spoken on a variety of topics in this short debate. I also welcome the Minister’s reassurances about monitoring the quality of provision for SEN. I will read in more detail in Hansard his reply to the amendments. Meanwhile, I thank the Minister for his reply and beg leave to withdraw the amendment.

Amendment 22 withdrawn.

Amendment 22A not moved.

22:00

Clause 3 : Application for Academy order

Amendment 23

Moved by

[Baroness Massey of Darwen]

23: Clause 3, page 3, line 5, at end insert—
“(4A) Before making an application under this section, the governing body of a school—
(a) must consult the local authority with regard to the appropriate balance of educational provision in the local authority area, and(b) have the school’s intended policies on curriculum, admissions and employment approved by the Secretary of State for Education.”

[Baroness Massey of Darwen]

In moving this amendment, I shall also speak to Amendment 33 and win the second prize for the shortest speech. Many issues have been raised about these amendments, both this evening and before, but important as they are, I do not intend to go into detail or spend much time on them.

Amendment 23 is about consultation and schools’ intended policies regarding the curriculum, admissions and employment. Local communities and local stakeholders should be involved in decisions about what type of school should be provided in an area—points which have already been raised and will be raised again. Taken with my next amendment, Amendment 33, a consultation process would allow faith schools time to consider whether they wanted to retain their religious character or become inclusive academies. I wish to have the Secretary of State for Education approve the curriculum, admissions and employment policies because I foresee dangers affecting the rights of children to a broad and balanced curriculum and to admission to particular schools—as discussed earlier—and dangers to the rights of workers to be selected or promoted.

This is partly a faith schools issue, but partly not. I acknowledge the remarks made earlier by the right reverend Prelate the Bishop of Lincoln about some excellent faith schools, but that is not the point. The school curriculum should provide all children with the entitlement to develop to their full potential in UK society. To do that, they will need information, skills, and the development of aspiration. Academies do not have to follow the national curriculum, and those of a religious character will be able to discriminate on religious grounds against pupils and staff.

The notion of free schools fills me with some horror. I have terrible visions of children being taught, or rather indoctrinated, in some fanatical ways, and not just religious, in limited and unsuitable premises. The responsibility for offering a balanced and broad-based curriculum could be neglected or avoided. There are curriculum concerns with regard to, for example, the teaching of creationism. Will the Minister reassure me that all our children will have as their right a balanced curriculum that will fit them for life?

On Amendment 33, the Academies Bill forces state-maintained schools with a religious character to automatically become independent schools with that religious character, permanently removing the possibility for state-funded religious schools to become inclusive academies. That removes choice and freedom from governing bodies, running counter to the spirit of the Bill, which aims to increase school autonomy. This could mean a proliferation of state-funded faith schools that are their own admission authorities and more likely to be unrepresentative of their surrounding areas than faith schools where the local authority is the admission authority. A report on community cohesion in Blackburn by Professor Ted Cantle describes religious schools as,

“automatically a source of division in the town”.

Opinion polls suggest that the public are aware of these issues, with 64 per cent agreeing that,

“the government should not be funding faith schools of any kind”.

Can the Minister give me any reassurance on these issues? I beg to move.

[Lord Hill of Oareford]

My Lords, we had a good debate in Committee on the importance of consultation, as a result of which we have thought again, and we will come to a group of amendments that deal with that issue. We have accepted that we need to make explicit on the face of the Bill the requirement that schools should consult. Although we recognise the important role that local authorities can play—as the noble Baroness, Lady Massey, knows—we are keen, so far as the consultation with local authorities is concerned, not to be prescriptive.

On the second element of the first amendment, it is certainly the case that the school will have to agree its admissions policy with the Secretary of State, but that would be at the point of entering into the funding agreement, just as has always been the case with academies. As she knows, I share her concerns about creationism, but one of the core aims of the policy is precisely that the Secretary of State should not dictate to academies what they should teach. The whole direction of government policy is to interfere less and trust teachers and head teachers more. It is not easy and a lot of debates that we have had have been around the tension between trusting people and being worried about what happens if you trust people and things go wrong. I fully accept that if you trust people things do go wrong, but that is the direction that we want to try to go in.

On the point that the noble Baroness made on employment, we want academies to have freedom around their employment terms and conditions. We do not want the Secretary of State to micromanage all that from Whitehall. As for faith schools, which we touched on briefly in earlier amendments, the Bill simply seeks to maintain the status quo. We are not seeking to make it easier for there to be an increase in faith schools or to change their character, but we believe that there should be the same chance to become an academy as any other maintained school. We do not think that any faith school seeking to convert should have to go through an additional application simply to stay as they are.

We do not propose to prevent academies from seeking designation after conversion, providing that they meet the relevant tests, just as will be the case for maintained schools. However, any new faith academies, including the free schools, about which I know she has some concerns, will have to balance the needs of children, both with a faith and with none, and admit at least 50 per cent of their intake without reference to faith. I hope that that is of some comfort to the noble Baroness and that it responds to some of the points that she made. I also hope that she will feel able to withdraw her amendment.

[Baroness Massey of Darwen]

My Lords, I thank the Minister for that response. I am somewhat encouraged. I think that we need more discussion on the issues around faith schools. My concern is that the welfare of the child is paramount and that they are entitled to certain things in a curriculum which may be excluded by certain types of school. I am very happy to discuss this with the Minister. In the mean time, I beg leave to withdraw the amendment.

Amendment 23 withdrawn.

Amendment 24 not moved.

Amendment 25

Moved by

[Lord Whitty]

25: Clause 3, page 3, line 7, at end insert—
“( ) Before making an application for an Academy order, the governing body shall, over a period of at least 6 weeks during term time, consult the following on whether to make the application—
(a) pupils at the school,(b) the parents of pupils of the school,(c) the parents of pupils at any other school from which at least 10% of the pupils have come in the previous 3 years,(d) staff at the school,(e) trade unions representing staff at the school, and(f) the governing body of other schools within its area which might reasonably be considered to be affected by the making of an Academy order.( ) In that consultation, the governing body will make available in writing at least the following information relating to the proposed Academy—
(a) details of the proposed Academy arrangements,(b) details of the proposed governance arrangements including details of the directors of the company which will enter into the Academy, arrangements and details of the composition of the governing body,(c) details of the arrangements for the curriculum, for admissions, for special educational needs, for pupil discipline and exclusion and for complaints,(d) details of any arrangements by which any other person will provide the education the proposed academy including details of the extent to which such arrangements will allow for that other person to make a profit from doing so,(e) details of any additional money which would be available to the school (either as capital or revenue funding) if it became an Academy, (f) details of any additional obligations which fall on the school if it became an Academy, and(g) details of the criteria which the Secretary of State would apply in deciding whether to make the Academy order.The governing body will take all reasonable steps to enable suporters and opponents of the proposal to circulate materials relating to the proposed application for an Academy order to other consultees.”

[Lord Whitty]

My Lords, in moving Amendment 25, I shall also speak to Amendments 26A and 28 in my name and to Amendment 26 on behalf of my noble friend Lady Royall, which I support. I shall also give some comments on the government amendment and the amendment to that. It is a difficult time of night to come to what I regard as one of the most important aspects of the process of setting up academies that is implied in this Bill. I shall try to be short, but I shall not be as short as all that.

We have had some debates on this matter but I fear that the Government, even with the amendment that they have put down for today, have moved nowhere near as far as is necessary. Whether we are in favour of academies or not, whether in general or in a particular instance, we would all recognise that the conversion of a school that has hitherto been a maintained local authority school into an academy is a momentous event. It is important for the pupils and parents of the school as well as for the staff of the school, which will have a different relationship with the local authority that no longer has oversight and no longer provides most of the services or administrative support. That is particularly important for the smaller schools in this category. It will change that relationship and there will be a different sort of relationship, both in terms of the powers of the governing body and the Secretary of State. After all, although the academies programme is portrayed as being a devolution of power, in reality these schools had previously been governed or overseen by a local authority and are now going to be funded, regulated and to some extent controlled by central government. That is not a move that either of the coalition parties was advocating to the electorate a few months ago—but there we go.

If this Bill goes through in more or less its present form, as undoubtedly it will, there is no current provision in the present draft of the Bill for consultation. I submit that there is a requirement for consultation at two points. There should be a requirement on the governing body proposing the change and a requirement on the Secretary of State in taking a view on that proposition. Neither is in the Bill at present. It is important, therefore, that we lay down requirements for consultation at both points. My first amendment does that in some detail. It may be argued that we do not need that degree of detail, and in normal circumstances I would probably have agreed. However, there is no general proposition coming from the Government that the governing body should consult.

The pupils are important—not only the current pupils and their parents but future pupils and parents. It is the whole community; it is schools that could be affected by the abstraction of one outstanding school from the community into a different form of control that will have an effect on the relative status and indeed, in practice, on the relative funding for that school against other schools in the neighbourhood. This could have profound effects on the town. This is why by and large I am in favour of maintaining local authority oversight rather than bringing in central government.

If we are going down this road, however, there needs at least to have been consultation with the parties that will be desperately affected by it. That consultation needs to set down what the broad provisions of the new arrangements are going to be. What will the governance of the school be? What will the changes in the curriculum be, broadly speaking? What other parties might be involved in the provision of education to the children of the neighbourhood? What financial provisions are there going to be, and what are the new obligations on the school?

My amendment sets all that out. It is conceivable to argue that that should be in a code or in secondary regulations rather than in the Bill. I would normally accept that argument, but only once the Government had come to the position of saying that the primary requirement for consultation is laid down in the Bill itself.

It is also important that the Secretary of State has some obligations in this area as well as the governing body. The Secretary of State is making the final decision. He is drawing up one side of the agreement both on funding and on the other provisions that will come in the charter for the school. It is therefore important that we have a Secretary of State able to consult independently with the major parties, particularly with the local authority.

My second amendment relates to the role of the local authority. Even those local authorities that are by and large in favour of the academies programme need to have the ability to tell the Secretary of State what the implications of this will be for education provision throughout their area of jurisdiction. If an outstanding school in a town is being taken out of local authority oversight, the local authority needs to have the ability directly to tell the Secretary of State or his officials what the effect of that will be. We therefore need to have a secondary level—or possibly a more important level—of consultation about who the Secretary of State should speak to.

I have stripped that part of my amendments down to the absolute minimum. I do not list anyone else except the local authority. I expect the local authority to have taken into account both the consultation that the governing body will have conducted and its normal relations with parents and providers within the local authority area. If localism and devolution mean anything, the views of a local authority that is losing an outstanding school must be taken into account before the Secretary of State can reasonably sign off on that academy order.

My amendments, taken together with Amendment 28, which deals with the Secretary of State setting out the criteria by which he has judged whether the order should be issued, would give all the parties to the agreement—all the parties to the school, if you like—the opportunity to give their views as well as an understanding of what is involved and what changes will affect their children and their neighbourhood, along with a balanced view to be taken by the governing body in the first instance and by the Secretary of State. Without specifically providing that the Secretary of State should consult local authorities, that relationship breaks down and this whole provision begins to look as if it is likely to lead to conflict rather than to a smooth change.

Everyone in this Chamber knows that I am not particularly in favour of the process, but if we are going to have it, we need to do it in a way that ends up with the maximum possibility of co-operation between all those concerned. To do that, you need consultation up front before the final decision is taken.

I fear that the Bill does not do this. We need to ask why. I suspect that the good intentions of the people in the education team—the Secretary of State, the noble Lord and others—mean that they would, in slightly different circumstances, have written these provisions into the Bill. The problem is that the Secretary of State said, “All this has to be started by September. We have to write to several thousand schools, get their letters in and decide by September”. That timetable is complete nonsense. It has left the Government very exposed. I am sorry for them—I am sorry for the Minister that he has to defend it—but it is not sensible. If we want in two or three years’ time to have a large number of academy schools without conflict and without outstanding issues still to be resolved and blamed on the Secretary of State, let us have that consultation and engagement up front. If the Secretary of State should somehow back off the September date—I promise not to make a big thing of it—we would have plenty of time to sort these things out. I beg the noble Lord to talk to his colleague to see whether we can go back a bit in the light of arguments that have been made in this Chamber and elsewhere; indeed, I suspect that the Secretary of State will hear similar arguments in another place.

22:15

If the Secretary of State is not prepared to do that, all that we will have to address our concerns about consultation is Amendment 30, in the name of the Minister. The first two subsections go some way towards saying that the governing body should consult, although it states that it should,

“consult such persons as they think appropriate”.

That is a bit inward-looking. The previous Government occasionally used similar phrases, which I was a bit embarrassed about. It is not exactly outward-looking. Nevertheless, the amendment says that the governing body should consult appropriate people. However, the third subsection says:

“The consultation may take place before or after an Academy order, or an application for an Academy order, has been made”.

The consultation could, therefore, come after the event. The governing body could decide in a smoke-filled room without consulting anyone, not even the parents, let alone the staff, that it was going ahead with an application. It would bang off a letter to the Secretary of State, which would come to the top of his in-tray, because he was in such a hurry, and he would sign it off by 1 September—job done. The order would then be drawn up dealing with the funding and the other obligations. All that would have been done without consultation. Then, before it is fully implemented, we consult. That is a form of consultation practised by the late Joe Stalin. It does not work. It will have no democratic accountability, no transparency and no validity with the people involved in the transformation of the school. I do not think that the noble Lord’s amendment, as it stands, can be acceptable to us.

I am glad that the noble Baronesses, Lady Walmsley and Lady Garden, have proposed an amendment to the amendment. That amendment is a distinct improvement. It would require the governing body to conduct a consultation up front, which deals with at least half the problem. Although I will support the amendment if it is pressed, it is not sufficient, because it places no obligation on the Secretary of State. At the end of the day, it is the Secretary of State who is accountable to Parliament and who will make the decisions. He could still make the decision without having talked to anybody, apart from having received the letter from the governing body. That is nonsense, as I think the Government in their hearts must recognise.

I do not want to impose a huge bureaucracy on this process, but I think that people have to talk to one another at all stages. That includes not only the governing body but the Secretary of State. I therefore hope that, as a result of this debate, the Minister will consider coming forward with an amendment that covers both aspects and takes into account the amendment in the name of the noble Baroness, Lady Walmsley. If he comes forward with a more conclusive and clear amendment that enshrines in the process the principles of consultation, although it would not please me entirely, it would make me feel a lot happier.

[Lord Wallace of Saltaire]

My Lords, the noble Lord is in the 15th minute of a speech on Report, which is a little long.

[Lord Whitty]

I accept that it is a little long, although I did warn the House, but it is actually only the 12th minute and this is an education Bill. I beg to move.

[Baroness Walmsley]

My Lords, in his Amendment 25 the noble Lord, Lord Whitty, replicates probing amendments that were tabled by at least three Members of this House in Committee and about which we had long discussions. As a result, the Government have come back with a very sensible amendment, accepting our feeling that we should insist that schools consult the most appropriate people. The words,

“such persons as they think appropriate”,

are particularly right in the light of what I have just heard from the noble Lord, Lord Whitty. He suggested that we should list the future pupils of a school as being appropriate to consult. How far in the future are we talking about? What about children in the womb or the parents of children who may at some stage go to that school but who may have moved 50 miles away by the time the child is born? That is nonsense. To list the various organisations and groups of people who should be consulted is the sort of thing that the noble Lord’s own Front Bench resisted on many occasions.

[Lord Adonis]

The nonsense that I see in the amendments before us is subsection (3) in government Amendment 30, which, as my noble friend rightly says, allows there to be consultation after the order, in respect of which the consultation should have taken place, has been made. The noble Lord, Lord Wallace, is very anxious that we all shut up and do not speak. I have been very frugal in my interventions on Report. I was anxious not to have to make such a speech, but I badly need to hear the justification of the noble Lord, Lord Hill, for government Amendment 30, particularly subsection (3). How does he justify a requirement for consultation to be permissible after the event to which the consultation refers? We need to hear that before we know whether this needs a longer debate in which further views will be expressed. Perhaps the noble Baroness will give her view on whether she thinks it is adequate for consultation to take place after the event to which it applies.

[Baroness Walmsley]

My Lords, I will come to my Amendment 31 in just a moment. I strongly suspect that the Minister’s answer to the noble Lord, Lord Adonis, is that the academy order is permissive. It does not force the school to become an academy; it is permission for it to do so. The school becomes an academy only when it converts. I suspect that will be the answer, but my noble friend will speak for himself. I agree with the noble Lord, Lord Whitty, that it is desirable that the school consults all the right people before it even applies. I very much suspect that all those groups who feel themselves to be appropriate consultees—

[Baroness Thornton]

Does the noble Baroness think that there should be a consultation before a school becomes an academy or not?

[Baroness Walmsley]

Indeed I do, which is why I have tabled my little tweaking amendment in the hope of persuading my noble friend that a school should consult before it applies to become an academy. Once it knows the shape of the proposed school, the terms of the academy funding agreement, and—particularly in the light of what my noble friend Lady Sharp said about schools’ expectations of that extra money being somewhat inflated—how much money it will get, it is highly desirable that a school should then go back to appropriate consultees and say, “These are the terms under which we will become an academy if we decide to go ahead. This is the extra amount of money that we will get and this is what we have to do with it. Are you still sure that this is the right way to go about it?”. That is why I have put my little tweak into my noble friend’s very welcome amendment about consultation. It is desirable, but if he suggests that it is another thing on which we should not prescribe, I would be happy to accept that.

For the record, however, I urge schools that are thinking of applying to consult widely. I am confident that any group of people who feel that they are an appropriate group under the terms of this amendment but have not been consulted will certainly kick up an awful fuss. I ask the Minister to consider in particular that the pupils of the school themselves and the local authority would, in normal circumstances, fall into the category of,

“such persons as they think appropriate”.

That would give me considerable comfort in supporting Amendment 30 without my Amendment 31.

[Baroness Royall of Blaisdon]

My Lords, I rise very briefly to speak to Amendments 26 and 29. I agree with many of the points that were made by my noble friend Lord Whitty, especially in relation to September and the timing of the Bill.

We had a full discussion on consultation in Committee, and I recognise that the Minister was listening to the concern expressed about the serious hole in the Bill to do with the lack of consultation. As a result, he has tabled Amendment 30. This is an improvement but I believe that it is simply not enough. First, the consultation required is far too narrow. The amendment states that it is up to the governing body whom to consult. A governing body that is determined to become an academy could decide to undertake an absolutely minimal consultation, ignoring many parts of the school community and the wider community that should, and must, take a view. I have no doubt that it will consult parents and teachers, but it might not, in the interests of speed, consult the local authority or the local community.

Secondly, the amendment appears to suggest that the consultation could take place after an academy order has been made. That is far too late. Consultations must take place before an order is made. I agree with some of the points made by the noble Baroness. I listened carefully to the debate in Committee and I was much taken by the view expressed by the noble and learned Lord, Lord Mackay of Clashfern, that the consultation should be the responsibility of the Secretary of State. Our Amendment 26 would give the Secretary of State ultimate responsibility. It is also crafted in such a way that it answers the concerns of noble Lords, including my noble friend Lord Adonis, who expressed concerns about litigation.

Amendment 29 stipulates some of the bodies that we strongly believe should be consulted, and top of our list is the local authority. I recognise, of course, that current legislation does not address these issues. However, as I mentioned earlier, there is a vast difference between 200 academies and 2,000 academies and the potential impact on local school communities and the wider community. Consultation, especially consultation with local authorities, is a matter of due process. Local authorities are responsible for ensuring that a range of duties are complied with, and they are best placed to have a strategic view of education as a whole. They are also best placed to ensure that the system can cope effectively with demographic changes. All these things need to be considered in a consultation. In addition, I believe that education cannot be delivered in isolation from the wider range of local public services used by children and young people, many of which are currently commissioned by councils. It is right and proper that local councils should be consulted.

In my view, consultation is a key component of the success of any academy and is key to ensuring a balanced school community. I recognise that many noble Lords would not wish to specify in the Bill who should be consulted. I therefore urge them to support Amendment 26, which merely ensures that the Secretary of State can ensure that the appropriate consultation takes place.

[Lord Phillips of Sudbury]

My Lords, it is very encouraging to see my noble friend the Minister bring forward his Amendment 30, but I join others in hoping that he may bring forward an amended version of it at the final stage of the Bill. None of these amendments, except Amendment 26—that may be inadvertent—takes account of new academies: the so-called free academy schools. All these amendments speak of the conversion of existing schools into academies.

[Baroness Morgan of Drefelin]

As I understand it, throughout the passage of the Bill, there has been no such thing as a free school; free schools are academies. I am sure that will help the noble Lord.

[Lord Phillips of Sudbury]

I am grateful for the intervention but I am not sure that it does. I was merely repeating the parlance used by the Government when they talk of academy schools that are not conversions as free schools. I am merely making the point that every one of these amendments is drafted on the basis of an existing maintained school converting to an academy: except Amendment 26, which would cover new free academies, as they are called, as well as existing secondary schools. It is blazingly obvious that our consultation provisions must apply to these new academies. In fact, the need for consultation where a brand new academy springs up in an area is even more acute than when an existing school converts into an academy. I hope that the Minister will say in response to this mini debate that he will bring forward an amendment at Third Reading that includes the new academies.

22:30

[Lord Hill of Oareford]

My Lords—

[Lord Adonis]

My Lords, my understanding of the rules of procedure is that if I do not speak now, I cannot speak after the Minister. Is that correct?

[Noble Lords]

Yes.

[Lord Adonis]

In that case, I need to speak now. I wish to put to him the specific points raised by a number of noble Lords—including, implicitly, the noble Baroness, Lady Walmsley, in her Amendment 31—about subsection (3) of his Amendment 30. Why does he think that it is satisfactory for consultation to take place after an academy order has been made? The noble Baroness said that the order may be permissive. That may be true, but it would have to have been applied for in the first instance, and only the governing body can apply for it. My reading of subsection (3) of the noble Lord’s amendment is therefore that it will be possible for a governing body to apply for an academy order without any consultation, and then to go through a second procedure as to whether it wishes to activate the powers in the order. I am anxious to know what circumstances the Minister could conceive of in which that would be a reasonable course of action. Surely the reasonable course of action is for the consultation to take place at the point at which the school applies for the powers. I should be grateful if the noble Lord could explain to us why he thinks it would be reasonable for the powers to be applied for without any consultation, and then for the consultation to take place later.

In respect of my noble friend Lady Royall’s Amendment 26, I should point out that under the Education and Inspections Act 2006, for which of course the previous Government were responsible, schools may change from community to foundation status. That is a significant change of status that enables the school to become the direct employer of its staff, the owner of its land and buildings and its own admissions authority and to make significant changes to its governing body. It can undertake that process by a decision of its governing body without the Secretary of State playing any role at all.

In terms of consistency, I see no case for Amendment 26. Crucially, it depends on the validity and confidence of the local community in the consultation on the decision that a governing body takes in the first instance when applying for academy status. I look forward to the Minister’s response. However, it would look peculiar to the local community if the whole process of seeking to become an academy happens without any consultation, and if a consultation takes place only at the very last stage when it will be clear to all concerned that the school intends to go down that course.

[Lord Hill of Oareford]

My Lords, when we discussed consultation in Committee, I said that I would think further. In doing so, I have kept very much in mind the distinction drawn by the noble Lord, Lord Adonis, in that debate between what he called the spirit of consultation and an overly prescriptive legislative approach. That is an important distinction that will inform my response to the other amendments in the group.

Before responding to those amendments, I wish to speak to Amendment 30, explain the background to it and respond to the points that have been made. Many noble Lords expressed the desire in Committee to see something in the Bill on the expectation to consult. That point was put to me by my noble friend Lady Williams and other noble friends, and by Members on the Benches opposite. I reflected on that and, while the general direction of our policy is rightly to be less prescriptive, I recognised the need to reassure the House further and came back with my amendment.

My amendment aims to introduce a statutory requirement for a maintained school to consult on its proposal to convert to academy status. The school's governing body must consult such persons as it thinks appropriate. The consultation, as has been pointed out in the amendment, may take place before or after an application for an academy order has been made in respect of the school, or after it has been granted. That will allow each school to determine when it has sufficient information on which to consult, and at what point during the application process it wishes to do so. It is our view that schools are in the best position to determine when and how best consultation should take place. They might prefer to approach parents or others at the point at which they have firm proposals. The requirement in the amendment is therefore that the consultation must be held before the funding agreement is signed, since that is the point at which the school would be legally committed to the conversion process.

My noble friend Lady Walmsley made a point about academy orders. As the noble Lord, Lord Adonis, knows probably better than I do, they are a step along the way but are not irreversible. It is proper for consultation to take place based on the facts, the evidence and the specific proposal, right up to the point at which the funding agreement is signed—when, as noble Lords know, the process is irreversible.

Many types of schools will have different views on whom and how to consult, and we prefer to trust them to determine how to do this rather than provide an inflexible checklist. I think that that point is broadly accepted, although not by the noble Lord, Lord Whitty. I will pick him up on one point. He said that these deals could be stitched up in smoke-filled rooms. Because of legislation passed by his Government, the rooms could not be smoke-filled. We are not in favour of the more inflexible approach. We must trust professionals to make decisions of this sort. In line with the commitment that we are giving, we are amending our advice to converting schools on the department's website to include guidance on good consultation practice. We will discuss with an applying school as part of the conversion process what arrangements it has made for consultation.

I turn to Amendment 28. The Secretary of State will want to review each application for an academy order on its merits. As we discussed earlier, there needs to be flexibility in those considerations, as there always has been with academies policy. Our guidance for academy converters that are not yet rated outstanding will be published on our website. It will include details of the information to be included in an application.

We are not persuaded of the need for the Secretary of State to consult on academy conversions, as Amendment 29 proposes. It should be the school's decision to become an academy except in those cases where the school is eligible for intervention. Therefore, we do not believe that it is necessary for both the Secretary of State and the school to consult on the matter.

I do not expect that this will satisfy everyone. I have sought with my amendment to capture what I felt was the mood of the House and the desire for more reassurance, given the importance that the Government attach to consultation. Making it a statutory requirement in the Bill provides the greater degree of reassurance that noble Lords asked for. I therefore commend Amendment 30 and ask noble Lords not to press their amendments.

[Lord Mackay of Clashfern]

My Lords, am I right in thinking that an order does not convert a school into an academy but enables it to be converted into an academy, and that the conversion takes place later when the agreement is consummated? Am I right also that Amendment 30 requires that the consultation takes place before the school is converted into an academy, which can be after the order is made because the school has not yet converted into an academy?

[Lord Hill of Oareford]

That was the point that I was seeking to make.

[Lord Whitty]

As a matter of clarification, does the noble Lord not accept the amendment to his amendment tabled by the noble Baroness, Lady Walmsley?

[Lord Hill of Oareford]

My Lords, I commend Amendment 30.

[Lord Phillips of Sudbury]

Perhaps I may ask the Minister for further clarification. Does he accept that his Amendment 30 does not cover new academy schools and therefore needs to be extended?

[Lord Hill of Oareford]

The amendment arose out of our debate about concerns relating to the potentially large number of converting schools. With the amendment that I have tabled in response to the point made by my noble friend, I hope that we have met the concerns that were raised about the impact of free schools. A free school, which is going to have to demonstrate parental support, will, by definition, have had to carry out a large amount of consultation.

[Lord Whitty]

My Lords, I thank noble Lords for this interesting debate. The Minister’s position appears to be that his Amendment 30 stands. He has not told us whether he is accepting the noble Baroness’s Amendment 31, which would make his amendment slightly more acceptable with regard to the governing body’s responsibilities. I am being told that he has quite clearly rejected it.

[Baroness Walmsley]

My understanding, as the person who spoke to Amendment 31, is that my noble friend has said that he does not wish to accept it. My view is that it is desirable but not essential and I shall not be moving it.

[Lord Whitty]

That clarifies that matter, and it underlines my position in one sense. I do not believe that the Minister has gone far enough to persuade us not to pursue this matter, in that his amendment does not go far enough. It allows for consultation to take place only right at the end of the process, whatever is on his website in terms of guidance, which is no doubt desirable but not statutory or regulatorily required. It does not cover the Secretary of State’s responsibilities and nor, as the noble Lord, Lord Phillips, said, does it explicitly cover the situation relating to free schools. Therefore, it is deficient, and I ask the Minister to consider coming forward at Third Reading with a more comprehensive amendment on consultation. The rules of procedure do not allow him to answer that but it seems to me that I ought to allow him the opportunity so to do.

I shall not press my Amendment 25 on the grounds that to some extent I accept that it is too prescriptive. I think that my Amendment 28, which would require discussion with the local authority, could be taken care of by the Minister coming back with a more comprehensive amendment. My noble friend Lady Royall will no doubt decide whether to move Amendment 26, which is not as prescriptive but does deal with the central issues of timing and widespread consultation.

At this time of night I am not going to win a vote, although I consider that I have won the argument. I think that the Minister needs at least the flexibility to consider everything that has been said and to come back with a better amendment at Third Reading—one which does not include lists of people but which allows some flexibility in the process and clearly imposes on both the Secretary of State and the governing body a degree of consultation. I hope that he will hear what I say in that regard. In the mean time, I beg leave to withdraw the amendment.

Amendment 25 withdrawn.

Amendment 26

Moved by

[Baroness Royall of Blaisdon]

26: After Clause 3, insert the following new Clause—
“Consultation before Academy order
Before entering into Academy arrangements with any person the Secretary of State must satisfy himself that relevant interested parties have been consulted by that person.”

[Baroness Royall of Blaisdon]

My Lords, I am very grateful to the Minister for his clarification and to the noble and learned Lord, Lord Mackay of Clashfern, for further clarifying the issue.

I believe that the government amendment is too weak in that it does not deal with the timing properly. That is the most important thing. While I understand from what the noble and learned Lord says that it is not the end of the process, the consultation comes too late. It needs to take place at the beginning or just as the process has begun. That is a fatal flaw in the government amendment. I also believe that the consultation required is too narrow.

My noble friend Lord Adonis referred to foundation schools. I accept that in the past they have not had to consult when they changed their status. However, I think that there is a quantitative difference in the number of academies and the free schools that will become academies. We could be talking about thousands of schools. I think that consultation—

[Lord Greaves]

The amendment—

[Baroness Anelay of St Johns]

My Lords, procedure on Report does not permit such matters. Only questions for elucidation are permitted after the Minister has sat down.

[Baroness Royall of Blaisdon]

I am grateful to the noble Baroness. Essentially the government amendment is too weak. I beg to move Amendment 26.

22:45

Division 2

Ayes: 44

---

Labour: 39
Crossbench: 5

Noes: 111

---

Conservative: 79
Liberal Democrat: 27
Crossbench: 2

22:56

Clause 4 : Academy orders

Amendment 26A not moved.

Amendment 27 had been retabled as Amendment 28A.

Amendments 28 to 29 not moved.

Amendment 30

Moved by

[Lord Hill of Oareford]

30: After Clause 4, insert the following new Clause—
“Consultation on conversion
(1) Before a maintained school in England is converted into an Academy, the school’s governing body must consult such persons as they think appropriate.
(2) The consultation must be on the question of whether the school should be converted into an Academy.
(3) The consultation may take place before or after an Academy order, or an application for an Academy order, has been made in respect of the school.”

Amendment 31 (to Amendment 30) not moved.

Amendment 30 agreed.

Clause 5 : Effect of Academy order

Amendments 32 to 33A not moved.

Clause 6 : Transfer of school surpluses

Amendment 34

Moved by

[Lord Hill of Oareford]

34: Clause 6, page 4, line 26, leave out “and”

[Lord Hill of Oareford]

My Lords, Amendments 34, 35, 36, 37 and 54 are clarificatory amendments. Amendments 34, 35, 36 and 37 are intended to reflect the fact that the powers in Clauses 6 and 7 are intended to be used only when the school is very close to finalising funding arrangements with the Secretary of State, not merely because an academy order has been made.

Amendment 54 is necessary because the phrase “converted into”, which is currently found only in Clause 4(4), is now more widely used in the Bill. As noble Lords have previously commented, academy conversion is a two-stage process involving the making of an academy order and the agreeing of funding arrangements. These amendments ensure that should negotiations between the school and the Secretary of State not result in a final funding agreement being signed, there can be no question of the property transfer or financial balance powers being used. There would, of course, be no intention to use these powers other than to enable a school to make the necessary transition with all of its possessions, but we felt that this would make the position clearer.

Amendments 42, 43 and 44 provide further strengthening of the regime already contained in the Bill to provide protection for investments of public money into land held by schools and local authorities. The Bill’s provisions currently protect publicly funded maintained school land after a school becomes an academy by allowing the Secretary of State to make directions on the transfer of that land, should the academy close or vacate the site. However, as it stands, those protections apply only where interest in the land was transferred to the academy upon its conversion. If the foundation owning the land did not transfer it or any interest in it to the academy in the first place, then the public interest in the land would not currently protect it if the school were to close thereafter. I am grateful to the Catholic Education Service for bringing this issue to our attention.

We have made clear the importance of protecting investments of public money. This amendment therefore inserts a new provision to ensure that the powers to direct the transfer of land that was previously used for an academy also apply in circumstances where the land is retained by the existing foundation and used in any way for the purposes of the academy. It simply seeks to ensure that all possible and likely scenarios around land are covered equally and in a way that protects public investment in them. I beg to move.

23:00

[Baroness Morgan of Drefelin]

My Lords, I am grateful to the noble Lord for moving what I am sure are technical amendments. It would be helpful if he could explain whether these amendments apply equally to independent schools and to schools transferring from the maintained sector to become academies. If land is donated to a free school, a new academy, how will these provisions apply in those circumstances?

[Lord Hill of Oareford]

My Lords, I believe that they apply across the board. Should I need to be precise in some of those details, it might be best if I follow that up subsequently. I believe that because this will be in the general provisions of the Bill, it will apply equally to all academies.

Amendment 34 agreed.

Amendment 35

Moved by

[Lord Hill of Oareford]

35: Clause 6, page 4, line 27, at end insert “, and
(c) the school is to be converted into an Academy.”

Amendment 35 agreed.

Clause 7 : Transfer of other property

Amendments 36 and 37

Moved by

[Lord Hill of Oareford]

36: Clause 7, page 5, line 21, after “if” insert “— (a)”

37: Clause 7, page 5, line 21, at end insert “, and
(b) the school is to be converted into an Academy.”

Amendments 36 and 37 agreed.

Amendment 38

Moved by

[Lord Greaves]

38: After Clause 7, insert the following new Clause—
“Local authority duties
(1) The Secretary of State may by order arrange for a local authority to carry out any of the activities in subsection (2).
(2) The activities are—
(a) the oversight and monitoring of Academies in its area;(b) intervention and challenge when an Academy is under-performing;(c) strategies and plans of action for the conversion of schools in its area into Academies;(d) facilitating the integration of the work of Academies with that of maintained schools in the area;(e) anything else that the Secretary of State may do in relation to Academies.(3) An order made under this section is subject to annulment in pursuance of a resolution of either House of Parliament.”

[Lord Greaves]

My Lords, Amendment 38 stands on its own. A noble Lord seems to think that there is something funny in that, although I do not know what it is. I am trying to get a bit of enthusiasm and to get going so that it does not take so much time. With this amendment I return to the future role of local authorities, which I raised in Committee, particularly in relation to academies. It also raises the wider question of the future role of local authorities in relation to schools and education generally, which the whole question of academy conversions raises, particularly if they take place on quite a large scale in some areas.

I do not raise this issue particularly from the point of view of schools in the Lancashire authority, because we do not seem to have many schools applying for or expressing an interest in academies. Where I live, there have been just half a dozen in the eastern part of the county. In Pendle only one school was listed and it spent a lot of time last week telling everyone who inquired that it had appeared on the list by mistake and that it should not have been there at all. How many more there are like that, I do not know.

In some areas—it appears to be particularly so in parts of southern England and the south-east—there are rather a lot, so the future role of the local authority in relation to schools and pupils in those areas will become more pressing. In Committee I tabled two amendments on this matter. The Minister seemed to show some interest in the questions being raised and accepted that there are legitimate questions to be asked and answered. To paraphrase, he said that the Government believed that there was an important strategic role for local authorities in future in relation to schools, but that the Government had not really worked out exactly what that was yet and needed to think about it further. I think that that is a reasonable summary of what he said.

I have put this amendment down for further consideration in order to ask the Government their intentions in this matter, how quickly they might think about it and what consultation they might take in the mean time. I have rewritten it to be more general. I have suggested that future activities, even if all the schools in an area converted to academies, might include the,

“oversight and monitoring of Academies”,

which should be done locally rather than through a national quango or bureaucracy, and that there should be “intervention and challenge” when necessary. The issue which I raised in Committee about the,

“strategies and plans of action for the conversion of schools”,

to academies seems to be much more suited to local involvement and planning than at a national level where there is not likely to be much co-ordinated planning in each local area. Another activity listed in the amendment is,

“facilitating the integration of the work of Academies with that of maintained schools”.

The word “partnership” might have been better than “integration”, but the point is fairly fundamental; and there are probably other things that the local authority should be involved in in future in a strategic way—and, indeed, in a less strategic way—which I have not noted here.

This is a major issue. What I want to ask the Government is whether they will give a commitment that an important part of the education Bill that is expected in the autumn will tackle this vital area. Local authorities are going to be left in limbo if a lot of their schools convert quickly or do so over the next two or three years. They need to know where they stand and how to plan for the future, and everyone needs to know exactly what their role is going to be. Is that something that can be tackled in the promised education Bill, and if it is, will the Government carry out a serious consultation with local authorities over the summer to establish what local authorities think their role should be? That would create a genuine dialogue between the Government and local authorities about their future role in relation to schools.

This needs to take place with the Local Government Association and with educational bodies, and it also needs to take place with individual local authorities that have responsibility for schools. I know that the Government have written to local authorities just to ask them what their future role might be, but a proper consultation needs to take place. The Government need to set out the parameters of what could happen in the future, with alternatives and proposals, and ask local authorities what they think they ought to be contributing. If there is an important strategic role for local authorities, which the Government say there is, in a future in which an increasing number of schools in different areas are going to convert to academies, we need to know what that role is both while the process of conversion takes place and after a substantial number of schools have become academies. Either there is a role or there is not. The Government say there is, and we have several months before the education Bill arrives in the autumn for a thorough and serious debate about this extremely important matter. That is the purpose of this amendment. I look forward to a positive response from the Minister and I beg to move.

[Lord Hunt of Kings Heath]

My Lords, it is a remarkable testimony to the drawing powers of the noble Lord, Lord Greaves, on local government that at 11.08 in the evening, so many noble Lords are present to hear him speak. I should say that when he addressed these matters in Committee, it was also at a late hour. He has raised issues that are of great substance, and I hope that he might be tempted to bring an amendment back at Third Reading when we could have a proper debate about the role of local government in relation to education in prime time.

I believe that local authorities could have a positive role in the future. I read with interest the briefing produced by the Local Government Association, and they could have a useful and constructive role to play, post this Bill, in relation to academies. We had a good debate on SEN where I could see the positive role for local government. I come back to the Minister’s earlier comment that there is a clear tension in all these debates between wanting to let schools have much greater freedom, which many of us sign up to, and the risk that that involves. The Minister said that if you trust people, there will be times when things go wrong, and I think that that is right. The problem the Government face is that unless they have a local mechanism in place for dealing with these issues, they will come right back to Ministers. However much they set up other agencies or say, “It is nothing to do with us, it is a matter for individual schools”, I can tell him that in the end they will come back to Ministers. In that context, local authorities could play a constructive role and I hope that the noble Lord, Lord Greaves, might allow us to have a wider debate on this next week.

[The Earl of Listowel]

My Lords, I agree with the thrust of what the noble Lord, Lord Greaves, has said. He referred back—as did the noble Lord, Lord Hunt of Kings Heath—to our debate on the necessary expensive services to children with special educational needs and the need for a strategic commissioning of such services. There could be an important role for local authorities in that area in future. Like the noble Lord, I would encourage the Minister to set up some kind of forum with the local authority so that there is an ongoing communication with it. Each local authority will have a councillor responsible for the welfare of children within its area; why could there not be informal meetings in which new academies are introduced to such people? This would enable the doors of communication to be kept open?

As my noble friend Lady Howarth made clear, if we want children to succeed at school, we need to make sure that their welfare is catered for. It is important that social services work in partnership with schools. I am sorry to repeat it one more time, but head teachers keep on telling me about the value of social workers when they are connected with a school; or, if they do not have a social worker, how much they would like one attached to their school. It is important to keep these matters in mind and I thank the noble Lord, Lord Greaves, for making this debate possible.

[Lord Wallace of Saltaire]

My Lords, the debate in Committee underlined the importance which many noble Lords attach to the role of local authorities. There are some very important questions here and we do not pretend to have all of the answers. Both parties within the coalition are committed to the principle of localism, with decisions and accountability returned from London to local communities. We are clear that we no longer want to hear the Secretary of State for Education—as happened under the previous Secretary of State—announcing on the “Today” programme that he had just dismissed a head teacher in Carlisle. However, it would be only honest to admit that neither party in the coalition is yet clear what localism means in detail, in this sector and others, and what the balance between the role of local authorities and of more local communities, including parents and others, should be.

In his letter to council lead members sent on 26 May, my right honourable friend the Secretary of State for education made it clear that the Government see strong local authorities as central to their plans to improve education. This Thursday, the Secretary of State will be speaking on this theme to the Local Government Association conference. He will confirm that we want to see local authorities acting as powerful champions of excellence, both in education and in wider children’s services, and that we want to see local government playing a strong strategic role, working with schools to drive up standards, supporting schools in working together to share expertise, and in promoting the spread of innovation for the benefit of all.

We want to see a smooth transition to the new school system and we are pursuing a genuine dialogue with local government and other partners to that end. We will therefore pursue further dialogue with representatives of local government about these and related issues over the coming weeks and months. It may be, as my noble friend Lord Greaves suggested, that the local authority develops more of a commissioning role along the lines envisioned by the party opposite in its 2005 White Paper. It may also be that some of the other ideas that he alludes to in his amendment should be explored further as part of the future shape of provision and the relationship between local authorities and schools. I assure my noble friend that the Secretary of State is committed to this dialogue; he will be pursuing it further on Thursday and will make a number of proposals as to how it should be taken further in the next weeks and months. I invite my noble friend Lord Greaves, with his considerable expertise in this field, and other noble Lords who have expressed interest, to help shape our thinking in this area so that we can, in time, come forward with the best possible proposals. On that basis, I urge my noble friend to withdraw the amendment.

23:15

[Lord Greaves]

My Lords, I thank the noble Lord, Lord Hunt of Kings Heath, for his comments. He suggested that we might have a wider debate next week at Third Reading and that I should put down further amendments. If he can explain to me how to get further amendments past the Clerks, I may pursue that suggestion. I would take advice from him as a former Minister.

[Lord Hunt of Kings Heath]

My Lords, perhaps I can help the noble Lord. It is quite clear that if he does not press his amendment tonight, the matter will not have been settled. The fact that there has not been an occasion other than at a very late hour should, I hope, be ample justification for him to produce another amendment.

[Lord Greaves]

I shall perhaps go into the Public Bill Office waving my copy of Hansard and quoting the noble Lord in evidence. How much good it will do, I will perhaps find out.

I was grateful to my noble friend the Minister for his response to my comments. The phrase “it may be” occurred quite a lot of times, which does not seem to be a very firm commitment, but I shall perhaps discuss with him outside this Chamber what it means in this context. I hope that I can get a firm assurance that the Government will look seriously at these matters. The fundamental question as far as this Bill is concerned is: what is the relationship between a local authority and academy schools in its area? That is why the amendment is tabled as it is. There is the wider issue of the role of what we used to call the local education authorities.

My noble friend the Minister almost got into a philosophical discussion of localism and then drew back—I would take part in such a discussion any time. However, he did say that he wanted local authorities to have a strong, strategic role in education. That is the nub of the matter. The question that he did not answer is whether we can expect this autumn’s education Bill to tackle the important question of the role of local authorities. That, again, is a question that I will want to pursue with him outside this Chamber before deciding whether to attempt to bring it back. Meanwhile, I beg leave to withdraw the amendment.

Amendment 38 withdrawn.

Amendment 39 not moved.

Clause 8 : Charitable status of Academy proprietors etc

Amendment 40

Moved by

[Lord Hodgson of Astley Abbotts]

40: Clause 8, page 6, line 14, leave out “is a charity” and insert “may be deemed to be an exempt charity if and in so far as it is a charity”

[Lord Hodgson of Astley Abbotts]

My Lords, this is a technical but important amendment that is causing some interest and concern in the charitable sector because of the implications for the authority of the Charity Commission. We had a very interesting debate on this matter in Committee on 28 June, when my noble friend the Minister was kind enough to suggest that I should withdraw the amendment so that some conversations could take place behind the green baize door. I am pleased to be able to say that we have had those conversations. Some interesting points were made by his officials, to which I shall respond in a minute. No definite conclusions were reached, however, so I have re-tabled Amendment 40 in the hope that the Minister will be able tonight to accept its purpose.

Just to set the issue in context, I remind the House that my original argument was as follows. The Charities Act 2006 created a delicate balance, reconciling the many and diverse views about charitable activities. It did so by removing the presumption under the 1601 Act that the advance of religion, relief of poverty and advance of education were automatically charitable. It was agreed that this was no longer appropriate. Instead of this, we were to have a single public benefit test, to be applied to all charities at inception and thereafter. It put the creation, administration and enforcement of the public benefit test in the hands of a single independent regulator, insulated from any political pressure: the Charity Commission. Thus, a level playing field was established across all charities.

Nowhere was this more important than in the field of education, because education has fee-paying schools and there are strong views about whether they can or should be able to have charitable status. I argued that the Bill as presently drafted upsets that balance, undermines the independence of the Charity Commission and, most importantly, creates a dangerous precedent of government and ministerial interference in the charitable sector. That was the argument.

The arguments of the Minister’s officials can be summarised as follows. First, the wording of the type used in Clause 8(1) has been used before and therefore changing it is not only unnecessary but creates a dangerous precedent. As a matter of principle, I find that an unsatisfactory response. Carried to its extreme, it is an argument for never changing anything and for complete bureaucratic inertia. If the drafting of a statute is defective, we should put it right and not argue that it is too difficult to change it subsequently. But I have a number of substantive arguments as opposed to that one of principle and issues about the way the Minister’s officials have sought to reinforce their position.

The first is that any precedents that are drafted before 2006 are irrelevant because they predate the ending of presumption: they assume presumption and therefore are irrelevant. Only those statutes that have come into effect post-2006 are relevant. There is only one such that the Bill team was able to produce and that was in the Apprenticeships, Skills, Children and Learning Act 2009, so I went searching. In Schedule 8 (33M), I found:

““A sixth form college corporation is a charity within the meaning of the Charities Act 1993”.

That is quite different wording from what we have here. The Bill states:

“A qualifying Academy proprietor is a charity”,

not,

“a charity within the meaning of the Charities Act 1993”.

I am not enough of a lawyer to be able to weigh the significance of the additional words, but it indicates that sixth form colleges are much more closely tied to the remit of the Charity Commission and therefore reduced the risk of undermining the authority of that commission. Certainly, nothing in the 2009 Act envisaged the creation of a whole new class of exempt charities with their own regulator as Clause 8 does in subsection(4).

Further, the nature of the arrangements in the Apprenticeships, Skills, Children and Learning Act are quite different from those envisaged in this Academies Bill. Inter alia, the former Act did not envisage the degree of independence for sixth form colleges as for schools under this Academies Bill. If noble Lords look at the Model Funding Agreement which the Minister has been kind enough to circulate, in many cases they will see a degree of independence that means that the charitable status of the academy is much more important. The Minister himself in his letter of 1 July that he kindly circulated to us says that:

“These different processes are necessary because of the contractual nature of our relationship with the Academies”.

Therefore, the Bill team is wrong to try to argue that there are a series of precedents out there that make this amendment unnecessary.

The second argument that the Bill team brought forward was to quote from my speech in Committee on 28 June when I said I was sure that academies would be able to pass the public benefit test. Why, then, they argued should I be concerned about the wording? I absolutely agree that it is likely that the academies will pass the charitable test, but that is not the same as believing that they should not be able to fail. I can envisage circumstances in which academies could fail a public benefit test. Indeed, the many debates that we have had tonight and in Committee have raised pinch points where that could happen. I hope that it does not, but it could. That is why we need to be very clear about charitable status.

To conclude, my amendment is designed to bring absolute clarity to the charitable status of academies by preserving beyond peradventure the delicate balance achieved in the Charities Act 2006—no ifs, no buts, no maybes and, above all, no requirement to pay expensive lawyers for interpretation of clauses the meaning of which is not absolutely clear. Along the way, this amendment has two further side benefits: we buttress the independence and authority of the Charity Commission as the regulator of the sector and, last but not least, we avoid creating a precedent of governmental interference in a sector that is heartily to be avoided. I beg to move.

23:30

[Lord Phillips of Sudbury]

My Lords, I shall speak to Amendments 40A and 40B and build to some extent on what the noble Lord has just said. As a long in the tooth charity lawyer, I have come to believe that the law of charity is best regulated by the Charity Commission. It may not be a perfect regulatory animal but it is, by a measure that you cannot count, more experienced in regulating charities than any of the other principal regulators. It is worth adding that charity law is one of the most difficult branches of law, as it is both a combination of common law and statute law and calls for more judgment in its application than perhaps any other branch of law. It is not textbook law.

I have heard what my noble friend the Minister has said on past occasions and I am content, despite misgivings, to go along with Clause 8, but only on condition that, if the principal regulator proves inadequate to the difficult task of regulating not only the large number of academies to come but the 200-plus academies that already exist, the Charity Commission should then be able to intervene and exercise powers.

For noble Lords who are not aware of it, I should say that the Attorney-General has jurisdiction with regard to all charities. The Minister might say that that should be enough, but the Attorney-General will not intervene other than in quite exceptional circumstances and, frankly, he is not supposed to be an alias principal regulator. The problem is that the powers in Sections 8 and 18 of the Charities Act 1993 were given to the Charity Commission to ensure that charities are charitable—and there is no more precious name or reputation in this country, I suggest, than that of charity—and can be exercised only by the Charity Commission. They cannot be exercised by a principal regulator unless that regulator asks the Charity Commission to exercise those powers on its behalf.

My Amendment 40B says that when the Charity Commission has concerns over the regulation of a principal regulator and what it is doing, or more likely not doing—in this case it will deal with the Young People's Learning Agency, because my noble friend has indicated that that is to be the regulator of academy schools—the commission will consult the principal regulator, the YPLA. If, having consulted the YPLA, it remains unhappy at what the YPLA proposes to do or not to do, having given notice to the YPLA it can institute an inquiry under Section 8 of the 1993 Act that will lead to the much wider powers that it will have under Section 18 of that Act. This is a power, a provision, that I would not expect to be exercised at all, but it is well worth having in the Bill because it may prove to be just the sort of spur that may be needed—I hope it will not—in order for the YPLA to do the job properly. That longstop—the prospect of being exposed to public ridicule and contempt by the Charity Commission having to intervene under the provisions of this subsection—would ensure, as far as anything could, that the YPLA did the job properly.

Before finishing, I would like to say a word about the YPLA. It has been in existence for just three months. Noble Lords may wonder, as I do, whether such a new organisation can possibly be in a position almost immediately—we are talking about the autumn—to undertake this huge and difficult regulatory role. People capable of exercising these powers in a knowledgeable and practical way are few and far between, and it will not be easy to put in place the team necessary to do this job properly. It must be done properly because these academy schools are hugely important in public interest terms. I am anxious that it will not be possible for them to assemble the necessary expertise to do that job, which makes my amendment all the more important.

I am also concerned, to be honest, about the potential conflict of interest that the YPLA will have. Its principal responsibilities, as made clear by the former Minister, Ed Balls, are, first, to support local authorities in commissioning suitable education and training for 16 to 19 year-olds; secondly, to fund academies; and, thirdly, to provide financial support to young learners— none of which is anything to do with the difficult regulatory function that is to be cast upon it under the Bill. I am sorry to have had to explain all that at length, but it is not easy to get across the background to and the need for this amendment.

Finally, and much more simply, my Amendment 40A adds to Clause 8 the charitable incorporated organisation alongside companies limited by guarantee as the alternative vehicle for an academy school. This charitable incorporated organisation was brought into existence by the Charities Act 2006. It is a specially tailor-made corporate animal for charities and is therefore infinitely simpler than the company limited by guarantee, which is subject to the vast forest of company law. I have no doubt that when the regulations come into effect, which will in effect give birth to these charitable incorporated organisations, all the academy schools will want to convert into that new charitable corporate vehicle. It would be remiss if we were not to include that now alongside companies limited by guarantee. I hope that both these amendments will appeal to your Lordships and indeed to my noble friend the Minister.

[Baroness Morgan of Drefelin]

My Lords, I have listened to the debate on Report with even more concern than I did in Committee. I was hoping that, following meetings between noble Lords and the Minister, there would be more on offer to meet the concerns raised by the noble Lords opposite.

When thinking about this group of amendments, I had similar concerns to those of the noble Lords, Lord Hodgson and Lord Phillips. I was particularly concerned about the role of the YPLA as a regulator when there are conflicts of interest and about the YPLA’s capacity to deal with this. Will the Minister tell us how many staff with charity law experience the association has in place who are ready for this retrospective legislation that will put it in charge of regulating the academies that are currently charities, if that is what is going to happen? I am very concerned about Clause 8.

This reminds me of a storyline from “Yes Minister”. When a new Government come in, officials dust down an old policy that they were not able to convince the previous Government to pursue and suddenly it finds its way into legislation. That is what appears to have happened here. When we were in government, this proposal was put to us. We listened to the concerns voiced by many and to arguments similar to those put by the noble Lord, Lord Hodgson, and we did not pursue this approach.

In Committee, the noble Lord, Lord Phillips, described the clause as “a dog’s dinner” and made clear his view that the regulator should be mentioned in the Bill. The noble Lord, Lord Hodgson, made the important point that the Bill would damage the “delicate balance” between,

“the many strongly held views about the charitable sector”.—[Official Report, 28/6/10; col. 1632.]

He said that this would particularly be the case in the area of education, which has been highly controversial.

The Government should tread carefully in this area. I offer the Minister some advice: it would be sensible to listen to the advice that he is being given at this Report stage and to think further about how the issue can be managed in the Bill. I do not think that it would be a good thing to go forward with this clause, as it would unsettle the settlement achieved in the Charities Act 2006, which was a well deliberated piece of legislation about a hugely controversial area. I hope that the Minister will think further about this.

[Lord Hill of Oareford]

My Lords, as usual this has been an interesting debate. My noble friend Lord Hodgson has set out important points of principle, which, as he said, we have had the chance to debate outside the Chamber—I am grateful to him for taking the time to do so.

I start by setting out the purpose of Clause 8(1), which is to put beyond doubt that academies are charities. Because it is proposed that academies will be exempt charities, they will not in the future be registered with the Charity Commission. It follows from that that they will not receive a charity registration number from the Charity Commission or the Charity Commission’s confirmation of charitable status that comes with being registered. Therefore, we think it important statutorily to confirm academies’ status as charities in this clause.

My noble friend Lord Hodgson has spoken powerfully and from a position of principle. I know how much work he and other noble Lords did on the Charities Act 2006 and, when I heard him arguing his case in Committee and when we met, I found what he said very much worth listening to. He touched previously on his concern that deeming academy trusts to be charities would set a precedent and he set out the response that he was given about that. I reiterate our view that there is a precedent. Our proposal to deem academy proprietors as charities will replicate the current legal position as it applies for a variety of other educational bodies whose status as charities is declared by statute. A range of educational bodies are deemed charities and are made exempt charities. Further education colleges and higher education colleges are deemed charities and are made exempt charities not regulated by the Charity Commission. The governing bodies of foundation and voluntary schools are deemed as charities; they are shortly to become exempt charities as well, following discussion and agreement between Ministers at the Cabinet Office and the department. It seems to me that it is not completely inappropriate for academies to be treated consistently with these other schools and educational bodies and for them to be deemed as charities under Clause 8(1) and made exempt under Clause 8(4).

My noble friend Lord Hodgson reiterated tonight the point that he made in Committee: he has no doubt that academies would be able to pass the public benefit test established by the Charities Act 2006. Given that, it would be appropriate to treat academies in the same way as these other educational institutions. The model articles of association for academy trusts provide that the objective of the academy trust is to advance education for the public benefit. It is only academy trusts which have exclusively charitable objectives that would be deemed charities. The provision of education to pupils without charge is in the public benefit. Therefore, their charitable status should be confirmed.

If Clause 8(4) is enacted, a principal regulator would need to be appointed to oversee academies’ compliance with charity law. The Minister for the Cabinet Office, as noble Lords know, has agreed in principle to appoint the Young People’s Learning Agency as principal regulator. I know that some reservations have been expressed about that. It will clearly need to recruit people to perform that role in just the same way as the Charity Commission would have to. It has made clear that it does not necessarily have the staff to perform this responsibility. As the government body with day-to-day responsibility for managing the performance of open academies, the YPLA could be an appropriate body to carry out this role, since it means that it would be managing academies as a whole. The YPLA and the Charity Commission would agree a memorandum of understanding about the principal regulator role to ensure that academy trusts remain fully compliant with charity law. On the matter of maintaining accountability and transparency, funding agreements or grant arrangements would place an obligation on academy trusts to publish their governing documents, reports, accounts and the names of their trustees.

Amendment 40A, spoken to by my noble friend Lord Phillips, would allow charitable incorporated organisations to enter into academy arrangements. If that is my noble friend’s intention, I am pleased to tell him that the Bill as drafted would allow that to take place. Clause 1(1) allows the Secretary of State to enter into academy arrangements “with any person”. I am advised that it is thus already possible for the Secretary of State to enter into academy arrangements with a charitable incorporated organisation, but it is not necessary for it to be deemed a charity or exempted to enter into such an arrangement. I know my noble friend’s expertise in this area and that he will want to reflect on this point. I will be happy to arrange to confirm that understanding with him.

Amendment 40B would give the Charity Commission the power to institute an inquiry if it considered that an academy trust was not complying with its charity law obligations. We would certainly accept and agree with my noble friend that the principal regulator should seek advice from the Charity Commission where necessary. We expect the YPLA to work closely with the Charity Commission, but are not currently convinced that the commission should be able to override the principal regulator. The Charity Commission has the power to conduct inquiries in relation to exempt charities under Section 8 of the Charities Act 1993, where the principal regulator requests this.

This next point may go some way to meeting my noble friend’s point about the backstop but, again, I am happy to discuss it with him. If the Secretary of State was satisfied that the YPLA was unreasonably refusing to invite the Charity Commission to carry out an inquiry in relation to an academy—I assume that is a conversation that he could have with the Charity Commission, or it with him—he has the power to direct the YPLA to make such a request to the Charity Commission, so that it could carry out that inquiry. I hope that provides a modicum of reassurance to my noble friend, but I am happy to discuss that further.

Overall, it is a clear principle of the academies programme that academy trusts should be charities. Clause 8 will make the process of establishing an academy easier by removing the need for each one to apply to the Charity Commission to be registered as a charity. It will simplify the regulation process. I hope that on some of these points I have provided reassurance that academies’ compliance with charity law, and public accountability and transparency, will be fully maintained.

23:45

[Lord Hodgson of Astley Abbotts]

If the YPLA is the exempt regulator, does my noble friend expect it to have a public benefit test which it will apply to the schools, and will that be the same public benefit test as the Charity Commission applies to other schools?

[Lord Hill of Oareford]

We think that a state-funded school which becomes an academy would be deemed to have passed the public benefit test. However, if I am wrong about that, I will write to my noble friend and put myself straight.

I know that my answer will not have provided satisfaction to my noble friend Lord Hodgson, and that I have only part met some of the concerns raised by my noble friend Lord Phillips. However, given the answers that I have provided, I hope that they will feel able at this hour not to press their amendments.

[Lord Hodgson of Astley Abbotts]

My Lords, I am grateful to the Minister for his lengthy research and work and for the answers that he has given me, though I have to say they are slightly uncompromising in tone. However, it is obviously far too late to explore this matter further tonight. I beg leave to withdraw the amendment.

Amendment 40 withdrawn.

Amendment 40A

Tabled by

[Lord Phillips of Sudbury]

40A: Clause 8, page 6, line 16, at end insert “or is a charitable incorporated organisation”

[Lord Phillips of Sudbury]

I too will not pursue this matter tonight. I think that my noble friend the Minister is not right on either of the two legal points he puts forward, but we can discuss that tomorrow.

Amendment 40A not moved.

Amendments 40B and 41 not moved.

Schedule 1 : Academies: land

Amendments 42 to 44

Moved by

[Lord Hill of Oareford]

42: Schedule 1, page 14, line 15, at end insert—
“( ) This paragraph also applies if—
(a) publicly funded land has been held for the purposes of a maintained school by the trustees of the school, (b) the land is held by the trustees for the purposes of an Academy, and (c) the first or the second condition set out below is satisfied.”

43: Schedule 1, page 14, leave out lines 22 and 23

44: Schedule 1, page 14, line 31, at beginning insert “in a case where this paragraph applies by virtue of sub-paragraph (1),”

Amendments 42 to 44 agreed.

Amendments 44A and 44B not moved.

Schedule 2 : Academies: amendments

Amendments 45 and 46 not moved.

Amendment 47

Moved by

[Lord Hill of Oareford]

47: Schedule 2, page 17, line 21, at end insert—
“Freedom of Information Act 2000 (c. 36)9A In Part 4 of Schedule 1 to the Freedom of Information Act 2000 (public authorities: maintained schools and other educational institutions) after paragraph 52 insert—
“52A (1) The proprietor of an Academy, in respect of information held for the purposes of the proprietor’s functions under Academy arrangements.
(2) In sub-paragraph (1)—
“Academy arrangements” has the meaning given by section 1 of the Academies Act 2010;
“proprietor” has the meaning given by section 579(1) of the Education Act 1996.””

[Lord Hill of Oareford]

My Lords, in Committee I said that I agreed with my noble friend Lord Lucas that academies should be included within the coverage of the Freedom of Information Act 2000. I said that I would consider this issue further and come back to it on Report. Having thought about it, I can see no reason why academy proprietors should not be subject to the Freedom of Information Act in the same way as all maintained schools are subject to that Act. Amendment 47 would simply insert a new clause into the Bill that would amend the Freedom of Information Act 2000 to add academy proprietors to the list of public bodies covered by that Act.

The new clause brings academy proprietors within the coverage of the Act in respect of information that they hold for the purposes of their functions under academy arrangements. This will cover functions relating to establishing and maintaining an academy and the carrying on of the academy once it has been established. If enacted, it is our intention to commence this duty in sufficient time to ensure that any schools which become academies in September will continue to be subject to the Act after they cease to be maintained schools. In relation to existing academies which have up until now not been subject to the Act, we intend to commence this duty for them early in the new year in order to give them time to prepare.

We believe that extending the Freedom of Information Act to academies is right in itself, but it also has another advantage linked to our broader discussions in Committee and today about consultation and transparency. I believe that having information about academies in the public domain will help dispel suspicion and make people appreciate the positive contribution that they are making to raising educational standards. I know that noble Lords on all sides of the Committee will welcome this amendment and I am very grateful to my noble friend Lord Lucas for flagging the issue up with his original amendment.

Amendment 55 is a technical amendment required to ensure that Amendment 47, the main amendment to the Freedom of Information Act, will technically extend throughout the United Kingdom, even though it will apply only in England. I beg to move.

[Lord Lucas]

Thank you.

[Lord Hunt of Kings Heath]

My Lords, I am sure that all noble Lords would thank the Minister for this. I wish to ask him a question. Yesterday we debated the small primary school that would have been able to become a foundation trust. Today, we have the announcement of the review of the UEA e-mail issue in relation to climate change scientific research, which in itself raises FOI issues. All of us who have been involved in public authorities know that establishing the apparatus and support mechanisms to deal with FOI requests can be considerable. I can envisage a school, perhaps not so much a primary but a secondary, dealing with admission issues and being subject to FOI requests, which is quite likely. My question for the Minister is: what support mechanism will be put in place to help schools deal with the FOI system, because they will need something.

[Lord Hill of Oareford]

My Lords, that is a very fair and sensible point. At the moment, maintained schools would be helped by the local authority. I take the noble Lord’s point. Academies which find themselves in that situation will need the kind of support that he is talking about. We will think about that within the department. I do not know whether the department is the right place to deal with this—it may well be. I take the noble Lord’s point; I agree with him and I will reflect on it. Perhaps I can let him know how we get on.

Amendment 47 agreed.

Amendments 48 to 50 not moved.

Amendment 51

Moved by

[Lord Whitty]

51: Schedule 2, page 18, line 32, at end insert—
“In section 237 (orders: supplementary) after subsection (3) insert—
(3A) An order under section 233(2)(d) or 234(2)(b) may also make provision by reference to actions taken or to be taken pursuant to Academy arrangements.
(3B) An order under section 233(2)(d) or 234(2)(b) or (4)(b) shall be formulated so as to apply to support staff employed to work at Academies with the same effect as it applies to staff employed to work in maintained schools.”
In section 238(3) (guidance) after paragraph (b) insert—
“(c) the governing body and proprietor of an Academy”.In section 240(3)(a) (school support staff) at end insert “or is employed under a contract of employment providing for the person to work wholly or mainly at an Academy in England”.
In section 241 (general interpretation) after “Chapter—” insert—
““academy” means an Academy within the meaning of the Academies Act 2010,
“Academy arrangements” means Academy arrangements within the meaning of the Academies Act 2010.””

[Lord Whitty]

My Lords, it is a bit of a forlorn hope that I can capture the Chamber’s attention at this time of night for a group of people who have not been mentioned at any other point during today, although they were mentioned at an earlier stage by the noble Baroness, Lady Sharp. I am very much on the same wavelength as her.

Among the groups that my amendment on consultation would cover are the teaching staff in general and teaching support staff in particular. This has been an area of expansion of employment in schools—in old jobs such as school secretaries and wider management roles, and in new jobs such as classroom assistants, paraprofessionals and other specialists. Because they are a relatively recent phenomenon, the terms and conditions under which such staff are employed are variable and are not on the same basis as other groups of staff within schools and local authorities.

Local authorities of all political persuasions, the LGA and the unions got together over the past three years to establish the support staff negotiating body and establish a national framework for the terms and conditions of such staff. This has proved beneficial to the management of schools which previously had found difficulty in having to manage individuals under separate terms. In some cases, there were serious conflicts.

This is not just a trade union point; it is a point about how smoothly schools can be managed and how we can avoid conflict in those schools. The problem of when academies are created under the Bill is that without consultation and the normal processes, public servants will be transferred into what will, in effect, be the private sector in terms of the employers they have to deal with. There would be an element of stability in that process if academies were to remain in the support staff framework. It is true that existing academies do not have to be in that framework, although they can opt to be, but it would be helpful to the management of schools which will face all sorts of more complex matters of self-management, once they become academies, if they were to remain or be assumed to remain within that structure.

When the noble Baroness, Lady Sharp, raised this at an earlier stage, she was told by the Minister that it was not deemed appropriate since the market would determine the rates—that would be the situation with teachers and what was good for teachers must be good for all other staff. Actually, it is the opposite situation. Academies will compete for teaching staff who are specialists or good teachers or teachers in subjects where teachers are scarce and thereby improve their conditions above the norm. In the area of support staff, what is likely to happen is that they will undermine what has previously been the rate in the continuing maintained schools in the local authority area, and will provide pay and conditions that are worse than they were prior to conversion to academy status. That will cause unnecessary conflicts between the management of the schools, the staff and in most cases their unions.

This amendment would provide an element of stability. I hope that the Minister will consider the implications as we go forward with the Bill. I beg to move.

[Baroness Morgan of Drefelin]

My Lords, I am delighted to support my noble friend's amendment. It may be late, but the contribution that support staff make to our country’s schools is worthy of significant attention. In Committee, I and the noble Baroness, Lady Sharp, reminded noble Lords of the important role of support staff, and I am delighted to support my noble friend's analysis of the challenges that they face with a major expansion of the academies programme. This amendment provides a framework that is markedly different from the national negotiating body that the Minister referred to in Committee. When one looks at the contribution that the 123,000 new classroom assistants have made across the school system, it is important that we take all possible steps to maintain stability in the workforce. A framework such as this would contribute to that. In the past, as the noble Baroness, Lady Sharp, eloquently said, support staff have been undervalued, and we should put in the work to create a new school support staff negotiating body. A lot of work and thought has gone into defining the roles and contribution that the staff make, and this could be a great support, particularly to small academies such as the primary academies that some noble Lords have been concerned to promote. I hope that the Minister will support this approach.

[Lord Wallace of Saltaire]

My Lords, I hope that the noble Lord, Lord Whitty, will forgive me if at this late stage I do not read out the whole of the 15-page brief that I have been given in reply. We are all conscious of the importance of support staff. From the anecdotal evidence that I have picked up both in Yorkshire and London, many classroom assistants and support staff working in maintained schools are working for remarkably low pay on part-time contracts that do not include lunch. Therefore, this is not simply a question about the transfer to academies: there is a broader question of how we all value the very useful contribution that they make. Having said that, and underlined the fact that it is not just a question of the conditions of support staff in schools that convert to academies, but that the problem exists across the board, I also emphasise that academies are intended to have freedoms over staff pay and conditions. That is precisely the point of freeing academies from the deeply complex, embedded structures of maintained schools across the country. Freedom in relation to pay and conditions has been a core freedom since the academies programme started under the previous Government, and indeed that was part of the reason why the previous Government set it up. It enables academies to establish pay and conditions which reflect their approach to the school day and to attract and appropriately reward innovative school leaders and practitioners.

As academies recruit good support staff, I urge them to value them as well, and perhaps to value them more than some maintained schools under local authority control do at present. Having said that, at this early hour, as it has just become, I urge the noble Lord to withdraw his amendment.

[Lord Whitty]

My Lords, I am not surprised but am gratified that the Minister did not read out his entire brief. However, he did get us past midnight and I congratulate him on that. It is the first time in this Parliament that I have been in the Chamber at this hour.

The Minister is right to say that the pay is not brilliant in the sector at present, but the framework that was agreed across the country has made the situation much more stable both for staff and for their employers. That was reflected in the Apprenticeships, Skills, Children and Learning Act 2009, which of course has a statutory base and came into force after the previous Government’s academies programme had started. Therefore, we are now faced with a framework which has a statutory base, as well as being a voluntary agreement. As my noble friend Lady Morgan said, it does not precisely lay down the pay rates but it gives a framework within which employers can operate. I should have thought that that would be useful, as my noble friend also said, particularly if smaller academies come through the process in the numbers that the Government hope for.

I would have hoped that the Government would look more favourably on my proposal but, for the moment, and at two minutes past midnight, I beg leave to withdraw the amendment.

Amendment 51 withdrawn.

Clause 11 : Transitional provisions

Amendment 52 not moved.

Amendment 53 not moved.

Clause 13 : Interpretation of Act

Amendment 54

Moved by

[Lord Hill of Oareford]

54: Clause 13, page 8, line 21, at end insert—
“(2A) Section 4(3) (when a maintained school is “converted into” an Academy) applies for the purposes of this Act.”

Amendment 54 agreed.

Clause 14 : Extent

Amendment 55

Moved by

[Lord Hill of Oareford]

55: Clause 14, page 8, line 29, at end insert “, subject to subsection (2).
“(2) An amendment or repeal made by this Act has the same extent as the provision to which it relates.”

Amendment 55 agreed.

House adjourned at 12.02 am.